United States v. State of Washington

626 F.Supp. 1405 (1985)

UNITED STATES of America et al., Plaintiffs,

v.

STATE OF WASHINGTON et al., Defendants.

Civ. No. 9213.

United States District Court, W.D. Washington.

*1406 *1407 *1408 *1409 *1410 *1411 *1412 *1413 *1414 Gene S. Anderson, John C. Merkel, U.S. Attys., Seattle, Wash., George D. Dysart, Sp. Asst. U.S. Atty., Portland, Or., for U.S.

Phillip E. Katzen, Alan C. Stay of Evergreen Legal Services, Seattle, Wash., for Jamestown Klallam, Lower Elwha Klallam, Muckleshoot, Nisqually, Nooksack, Port Gamble Klallam, Sauk-Suiattle, Skokomish, Squaxin Island, Stillaguamish, Suquamish, Swinomish ITC, and Upper Skagit Tribes.

Mason D. Morisset, Steven S. Anderson, Thomas P. Schlosser, Samuel J. Stiltner, Alvin J. Ziontz of Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Seattle, Wash., for Makah, Tulalip, Quileute and Lummi Tribes.

Lewis A. Bell (now deceased), Bell & Ingram, Everett, Wash., for Tulalip Tribes.

Allen H. Sanders (formerly of Evergreen Legal Services) now with Bell & Ingram, Everett, Wash., Richard Baum, Bellingham, Wash., for Nooksack Tribe.

John Howard Bell, Law Office of Puyallup Tribe, Tacoma, Wash., for Puyallup Tribe.

Allan E. Olson, Donald S. Means, Peter J. Wilke, LaConner, Wash., for Swinomish Tribal Community.

Daniel A. Raas, Thomas Stuen of Raas, Johnsen, Garrett & Stuen, Bellingham, Wash., for Lummi Tribe.

Susan Kay Hvalsoe of Cullen & Hvalsoe, Olympia, Wash., for Hoh, Quileute, Nisqually and Squaxin Island Tribes.

Richard Reich, Carl V. Ullman, Michael Taylor, Quinault Tribal Office, Taholah, Wash., for Quinault Tribe.

James B. Hovis, Timothy Weaver of Hovis, Cockrill, Weaver & Bjur, Yakima, Wash., for Yakima Tribe.

Michael R. Thorp of Eisenhower, Carlson, Newlands, Rhea, Henriot & Quinn, Tacoma, Wash., for Port Gamble Klallam Tribe.

Jane Cantor Shefler, Of Point No Point Treaty Council, Kingston, Wash., for Port Gamble Klallam, Lower Elwha Klallam, Skokomish Tribes, Toby Thaler of Point No Point Treaty Council, Jamestown Klallam Tribe.

Stephen K. Strong of Bendich, Stobaugh & Strong, Seattle, Wash., for Jamestown Klallam Tribe.

Gregory O'Leary of Wickwire, Lewis, Goldmark & Schorr, Seattle, Wash., for Skokomish and Muckleshoot Tribes.

Steven V. Quesenberry, Ukiah, Cal., for Skokomish Tribe.

*1415 Sasha Harmon, Suquamish, Wash., for Suquamish Tribe.

Joanne Foster of Browne, Ressler & Foster, Seattle, Wash., for Suquamish and Quinault Tribe.

Cynthia Davenport, Seattle, Wash., for Stillaguamish Tribe.

Jeffrey Schuster of the Office of the Tribal Atty., Auburn, Wash., for Muckleshoot Tribe.

Craig A. Ritchie of Doherty, Doherty & Ritchie, Port Angeles, Wash., Mary Van Gemert, Seattle, Wash., for Lower Elwha Klallam Tribe.

Thomas F. Carr, James M. Johnson, Senior Asst. Attys. Gen., Dennis Reynolds, Asst. Atty. Gen., Olympia, Wash., for State of Wash.

Compilation of Major Post-Trial Substantive Orders (from July, 1978 through December 31, 1985).

TABLE OF CONTENTS

ORDER PAGE

Summary of Memorandum Order and Preliminary Injunction Re Salmon Allocation

for 1978 and Subsequent Seasons (8/11/78, as corrected 8/16/78 and

amended 9/27/78 and 10/27/78) 1416

Additional Findings of Fact and Conclusions of Law Re Makah v. Lower Elwha

Dispute Re Hoko River (11/28/78) 1418

Order Re Coastal Salmon Fisheries Management Schedule (5/23/79) 1419

Amendatory Order Re Fisheries Advisory Board (1/11/80) 1421

Order Re Puyallup River Steelhead (2/6/80) 1422

Order Re Notification and Effective Date of Emergency Regulations (8/26/80) 1422

Order Re Conference of September 16, 1980 (9/25/80) 1425

Preliminary Injunction Re minimum Size Troll Fishing Regulations (3/5/81) 1425

Order Regarding Attorneys' Fees (5/4/81) 1426

Order Re Allocation of Quinault River Steelhead (5/8/81) 1428

Final Decree and Order Re Treaty Status of Jamestown Clallam Tribe of

Indians (5/8/81) 1432

Order Approving Magistrate's Report Re Treaty Status of Jamestown Clallam

Tribe of Indians (5/8/81) 1432

Order Re Set-Net Fishing in Mukkaw Bay (9/2/81) 1434

Findings of Fact and Conclusions of Law Re Determination of Additional Usual

and Accustomed Fishing Places of Nisqually, Puyallup, and Squaxin Island

Indian Tribes (8/22/81) 1441

Corrected Order Re Request for Determination of Port Gamble and Lower

Elwha Usual and Accustomed Fishing Places (10/23/81, as amended 3/8/83 and

5/24/83) 1442

Phase II Attorney Fees Memorandum Opinion and Order (12/15/81) 1443

Phase II Attorney Fees Memorandum Opinion and Order (9/16/82) 1454

Ruling Re Puget Sound Chinook (2/3/82) 1458

Order Approving Plan for Puget Sound Chinook Salmon (4/12/82) 1462

Order Re Quillayute River Steelhead (4/21/82) 1465

Order Re South Puget Sound Treaty Fisheries (11/5/82) 1466

Order Re Makah Tribe's Ocean Fishing Grounds (12/9/82) 1466

Order Re Hood Canal Agreement (3/8/83) 1468

Order Denying Makah Indian Tribe's Motion to Dismiss (5/25/83) 1470

Orders Approving Settlement Agreements Between the Tulalip Tribes and

Various Other Puget Sound Tribes Re Tulalip Fishing Area Claims (7/21/83,

10/13/83, and 5/8/85) 1471

Order Confirming Magistrate's Order Re WDF Computer Model (12/15/83)

[Not supplied for publication]

Order Re Puget Sound Equitable Adjustment (Amended Final Order) (1/19/84) 1484

*1416

Order Re Jamestown Klallam Request for Determination of Usual and Accustomed

Fishing Places (3/14/84, as amended 2/21/85) 1486

Order Adopting the Special Master's Report and Recommendation Re Skokomish

Indian Tribe's Request for Determination of Primary Right in Hood Canal

Fishery (3/22/84) 1486

Order Denying Motion to Vacate Order Entered March 24, 1984 (4/25/84) 1491

Order on Chehalis River Contempt Petitions (5/10/84) 1492

Order Re Attorneys' Fees Proceedings (6/22/84) 1503

Order Awarding Attorneys' Fees and Costs (4/30/85) 1504

Management Plans Re Sac Roe Herring Fishery 1526

Order Adopting New Puget Sound Salmon Management Plan (10/15/85) 1527

Findings of Fact and Conclusions of Law — In Re Tulalip Tribes' Request for Determination

of Usual and Accustomed Fishing Places (12/31/85) 1527

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS

(From July, 1978 through December 31, 1985)

CRAIG, District Judge.

The initial decision in this case and related rulings are reported at 384 F.Supp. 312 (W.D.Wash.1974), 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 , 47 L.Ed.2d 97 (1976), rehearing denied 424 U.S. 978 , 96 S.Ct. 1487 , 47 L.Ed.2d 750 (1976). Subsequent decisions and orders of a substantive nature rendered through June 30, 1978 are reported at 459 F.Supp. 1020 (W.D.Wash.1978). Various appeals were affirmed sub nom., Puget Sound Gillnetters' Association v. United States District Court, 573 F.2d 1123 (9th Cir.1978), aff'd in part, vacated in part, and remanded sub nom., Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 , 99 S.Ct. 3055 , 61 L.Ed.2d 823 (1979), remanded to District Court for continuing jurisdiction, 605 F.2d 492 (9th Cir.1979).

Further decisions and orders of a substantive nature issued through December 31, 1985, except for those already published at 476 F.Supp. 1101 (1979) and 506 F.Supp. 187 (1980), are set forth or summarized below. Senior District Judge George H. Boldt presided over the case until late 1979. Thereafter, Senior District Judge Walter E. Craig of the District of Arizona has presided. The following compilation was prepared for publication under the direction of and approved by Judge Craig. [*]

SUMMARY OF MEMORANDUM ORDER AND PRELIMINARY INJUNCTION RE SALMON ALLOCATION FOR 1978 AND SUBSEQUENT SEASONS

BOLDT, District Judge.

(Order of August 11, 1978, as corrected August 16, 1978 and amended September 27, 1978 and October 27, 1978)

(On July 11, 1978 the United States filed a motion for a 1978 summer-fall chinook allocation order. The matter was referred to Magistrate Robert E. Cooper as Special Master for hearing and determination. Magistrate Cooper held a hearing and issued a Report, Proposed Findings, Conclusions and Recommendations. Objections were filed, and the court held a hearing on August 10, 1978.)

Based on all the evidence and the prior holdings and decrees in this case, the court FINDS, HOLDS and ORDERS as follows:

1. Paragraphs numbered 1, 2, 3, 4, 5 and 6 of this court's Preliminary Injunction Re Allocation of 1977 Salmon Runs (459 F.Supp. at 1097) have continuing validity and are made a part of this Memorandum Order.

*1417 (The court then made rules for allocating the 1978 harvest for chinook, coho and chum salmon returning to the various Puget Sound and Grays Harbor salmon management areas.)

2. Non-treaty commercial fishermen regularly take home fish from their catch for personal use and for gifts. Such catches are not currently reported and the state has no data on the number of fish involved. No reliable evidence on the extent of this practice has been submitted and the court therefore makes no findings at this time. However, any party, within 15 days of the commencement of the first non-treaty terminal net fishery on the run in question, may request a hearing to show the extent of such catch and the Magistrate is granted continuing jurisdiction to revise the allocation of harvestable shares accordingly.

3. This court finds that the Tribes have adequate fishing power to take the allocations decreed by this court in Final Decision # 1, 384 F.Supp. 312 .

4. The court finds the determination whether proposed fisheries will harvest in violation of the allocations made by this court is a technical matter which may appropriately be assigned to the Fisheries Advisory Board. [1]

(The court then enjoined the State from exercising any form of jurisdiction over the portions of the fish runs allocated to tribal treaty fisheries without obtaining the express approval of the court. The court also required the defendants to adopt and enforce appropriate regulations to prevent non-treaty fishermen from taking more than their allocated shares of the runs or from taking fish needed for propagation to perpetuate the runs.)

5. Non-treaty commercial salmon fisheries in the waters of Puget Sound and other marine waters easterly of the Bonilla Point-Tatoosh Island line, their watersheds, all Olympic Peninsula watersheds, and all Grays Harbor and its watersheds, shall not be authorized, permitted or communicated by the defendants, State of Washington, Director of Fisheries, State Game Commission and Director, their officers, agents, servants, employees, attorneys or any persons in active concert or participation with them, unless prior approval of the specific fisheries is obtained from this court or the Fisheries Advisory Board (F.A.B.). [2]

6. When proposing any non-treaty commercial fishery, the defendants shall present to the Fisheries Advisory Board the most recent information regarding catches of the affected stocks, estimates of the expected harvest ability of the proposed fishery, and the method for determining that expected harvest. If there is disagreement within the Fisheries Advisory Board over whether the proposed regulations will interfere with achievement of the allocations made by this court, the court's Technical Advisor shall make a recommendation to the court. Pending determination by this court, the recommendations of the court's Technical Advisor shall be followed.

7. Notwithstanding the above, enforcement action by any party against identified treaty Indian fishermen shall not be taken except in strict compliance with the procedures and notice periods specified in this court's Injunction of March 22, 1974, 384 F.Supp. at 413-419; the Stipulation Re: Notice of Regulations dated October 15, 1975, 459 F.Supp. at 1060; the Order Re: Rules of Procedure for Fisheries Advisory Board dated December 17, 1976, 459 F.Supp. at 1061; the Memorandum Order and Preliminary Injunction dated August 31, 1977, 459 F.Supp. at 1097; and the Preliminary Injunction Re: Enforcement of Limitations on Non-Treaty Salmon Fisheries dated June 6, 1978, 459 F.Supp. at 1125.

*1418 8. Copies of all State regulations governing the non-treaty harvest in the case area and Grays Harbor area shall be filed with the court's fisheries Technical Advisor, each plaintiff tribe, the United States Fish and Wildlife Service, the Northwest Indian Fisheries Commission and their respective counsel. The State shall carefully monitor any non-treaty fishery and immediately advise the court and the Fisheries Advisory Board when any non-treaty catch meets the quota which is specified in this court's allocation or hereafter determined by the Fisheries Advisory Board or this court, and also advise this court of any encroachment on spawning escapement goals and of the extent and effectiveness of State efforts to prevent such encroachment.

9. Nothing in this order shall diminish the immunity from State regulation or affect the jurisdiction of self-regulatory tribes as prescribed by prior orders of this court, except that such tribes shall be bound by the allocations made effective pursuant to provisions of this or subsequent orders.

10. The defendants shall not adopt, apply or enforce any regulations to regulate, limit or restrict any fishing by members of the treaty tribes that is authorized by regulations of the United States or any of its agencies without first obtaining the prior express approval of this court.

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MAKAH v. LOWER ELWHA DISPUTE RE: HOKO RIVER

(November 28, 1978) [3]

BOLDT, District Judge.

The court has considered all the evidence submitted in connection with the Makah Tribe's motion for reconsideration of its Order of March 10, 1976 (459 F.Supp. at 1066). The Makah Tribe's request for an additional hearing is denied. None of the evidence offered changes the court's prior conclusion that the Hoko River was an area of joint occupation between the Makah and Lower Elwha. Accordingly, the court's prior ruling on this issue should not be modified.

The court also has fully considered all proposed findings of fact and conclusions of law and adopts the following additional findings and conclusions. Every finding of fact that may be a conclusions of law is adopted as such.

FINDINGS OF FACT

1. The Makah's Motion for Reconsideration was granted to allow the Makah Tribe to present newly discovered archeological evidence relating to the question of control of fishing on the Hoko River. The issues as defined by the Makah Tribe did not include a consideration of rivers other than the Hoko River (Tr. Nov. 29, 1976, p. 81; Makah Memorandum in Support of Relief from Final Order, August 17, 1976, pp. 1-3), and the Lower Elwha Tribe duly preserved its objections to evidence relating to other rivers east of the Hoko River. (Tr. Nov. 29, 1976, pp. 2, 75).

2. Anthropological evidence was presented by Dr. Barbara Lane for the Lower Elwha Tribe and Mr. Dale Croes for the Makah Tribe. The testimony of each has been thoroughly studied and considered by the court. In considering the credibility of each, the court took into consideration the fact that Mr. Croes has limited experience as an ethnohistorian, and has spent the previous five years emersed in archeological field work at the Hoko and Ozette Rivers. (Tr. Nov. 29, 1976, p. 7). Dr. Lane has had extensive contact and experience with ethnohistorical research and archeology. (Tr. Nov. 29, 1976, p. 126). The court finds that on the question at issue in this proceeding, namely control over treaty-time fishing on the Hoko River, the testimony of Dr. Lane is more credible and convincing than that of Mr. Croes.

*1419 3. The archeological evidence presented related to basket remnants excavated from an archeological wet site located on the Hoko River. (Ex. MK 13; Tr. Nov. 29, 1976, p. 10). Mr. Croes attempted to correlate various basket weave techniques and other artifacts found, with occupancy and control of the Hoko River. (Tr. Nov. 29, 1976, pp. 88, 90-91, 117, 119).

4. Basket remnants found in archeological digs are not conclusive of what people were responsible for making the baskets. (Tr. Nov. 29, 1976, pp. 26, 88). Even if one can establish that a particular basket technology can be considered predominately of one Indian type or another, that fact does not demonstrate that a particular group was in fact the dominant resident of a particular area. (Tr. Nov. 29, 1976, p. 91; "An Early `Wet' Site on the Mouth of the Hoko River Site" (48CA213) p. 224).

5. There is not a uniform basketry technology with all Salish people. Basket technology varied from the Fraser River to Puget Sound. (Tr. Nov. 29, 1976, pp. 144-145). There have been no wet site excavations done within Clallam territory and therefore it is difficult to compare the baskets found at the Hoko River with the baskets generally made by Clallam people. It is not appropriate to compare such baskets with such general Salish basketry given the difference between the baskets involved. (Id.)

6. At treaty times the Clallam Indians had a village, which may have been a permanent village, at the Hoko River (Ex. USA 91 (Lane Report on Lower Elwha), pp. 4-7; Aug. 6, 1975, p. 155). In 1854, a year prior to the treaty, Gibbs listed the Hoko as the site of the Clallam village. (Ex. USA 91, supra pp. 5-7). Waterman, writing on the Clallams indicated that the Clallams had a fishing site at the Hoko River. The Hoko River is named in the Treaty of Point No Point as the location of a Clallam village. There is evidence that the Makah people also utilized the Hoko River as a seasonal fishing village. (Tr. Nov. 29, 1976, p. 87).

7. The archeological evidence did not establish whether the Makah fished with Lower Elwha permission on rivers east of the Hoko River. (Tr. Nov. 29, 1976, p. 83). Similarly, the archeological evidence did not establish or assist in the determination of whether the Makah controlled the Hoko River fishing. (Tr. Nov. 29, 1976, p. 100). The archeological evidence showed that the Makah "occupied" the Hoko River in prehistoric times, (Id.) but did not necessarily show occupancy at treaty times. (Tr. Nov. 29, 1976, p. 122).

8. Ethnohistorical evidence presented was the same as that presented at the July 30, and August 6, 1975, hearings. A reevaluation of this extant evidence was undertaken by the Makah. (Tr. Nov. 29, 1976, pp. 76-78, 83). Dr. Lane provided an extensive examination of all the information presented. (Tr. Nov. 29, 1976, pp. 126-127, 129, 130, 152-157). Fishing on the Hoko River was exercised jointly by the Lower Elwha and Makah tribes. (Tr. Nov. 29, 1976, pp. 131-132). On the rivers east of the Hoko River fishing was controlled by the Lower Elwha. (Tr. Nov. 29, 1976, p. 152).

CONCLUSIONS OF LAW

There having been no testimony or other evidence presented to this court which would support a modification of this court's March 10, 1976, order, that order is affirmed in all respects and particulars. The court's March 10, 1976, findings of fact and conclusions of law are hereby incorporated by reference and made a part of this order. The Makah's Motion for Relief from Judgment is denied.

ORDER RE COASTAL SALMON FISHERIES MANAGEMENT SCHEDULE

(May 23, 1979)

McGOVERN, District Judge.

The court, upon recommendation of its Fisheries Technical Advisor, finds that it is necessary and appropriate that a schedule be adopted for various activities for *1420 management of summer and fall coastal salmon fisheries which are not covered by the Salmon Management Plan previously approved for Puget Sound Fisheries (459 F.Supp. at 1107). After discussions among the Washington Department of Fisheries, the Makah, Quileute and Hoh Tribes, and the Fisheries Advisory Board, the attached schedule has been agreed to by all of those parties. (See Fisheries Advisory Board (FAB) Reports 79-4, 79-5, and 79-6). In addition, the Quinault Tribe and the Washington Department of Fisheries have each agreed that they will coordinate their respective management activities in accordance with the relevant provisions of such schedule with appropriate modifications to fit the Quinault area fisheries and in accordance with the self-regulatory status of the Quinault Tribe.

Accordingly, it is ORDERED that the schedule attached as Attachment A is approved and adopted by the court subject to the understandings set out in Fisheries Advisory Board Reports Nos. 79-4, 79-5 and 79-6. This schedule shall be complied with by the State of Washington, the Makah Tribe, the Quileute Tribe and the Hoh Tribe except as may be otherwise agreed to from time to time by the Fisheries Advisory Board. This schedule shall continue in effect from year to year subject to the right of any affected party to request modification for subsequent seasons by written notification to the Fisheries Technical Advisor given on or before November 1 of any year for summer fisheries or March 1 for fall fisheries. If the Fisheries Advisory Board is unable to agree with respect to any such requested modification by December 1 or April 1, respectively, the requesting party may thereafter petition the court for relief from further compliance with such schedule.

ATTACHMENT A to Order re Coastal Salmon Management Schedule

Table of Scheduled Activities for Summer and Fall Fisheries

on Coastal Washington

----------------------------------------------------------------------------------------------

Deadline

--------------------------------------

Summer Fall

Activity fishery fishery

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(1) State shall provide to all parties proposed December 15 May 1

escapement goals for natural and hatchery

stocks. (These goals will not be annually

modified without sound biological

basis.)

----------------------------------------------------------------------------------------------

(2) Parties shall reach agreement regarding January 5 June 1

appropriate escapement goals for natural

and hatchery stocks.

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(3) The State shall provide to all parties proposed January 15 June 10

draft reports prepared on a system,

species by species basis. The reports will

contain proposed pre-season run size forecasts

and proposed methods for in-season

run size adjustments.

----------------------------------------------------------------------------------------------

(4) Parties shall reach agreement on pre-season February 10 July 1

forecasts and methods for in-season

run size adjustments.

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(5) Tribes shall provide written estimates to February 21 July 10

the State of the number of units of each

type of gear and possible fishing areas,

along with written estimates of projected

on-reservation, subsistence, and ceremonial

catches.

----------------------------------------------------------------------------------------------

(6) The Tribes shall provide the State with March 3 July 20

draft regulations for any planned fisheries.

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*1421

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(7) The State shall provide the Tribes with March 15 August 1

comments on the draft regulations.

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(8) Parties shall reach agreement regarding March 15 August 1

estimates of numbers of prior interceptions

by troll and sport fisheries.

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(9) Tribes shall file with the court and all March 25 August 10

parties, final tribal fishing regulations.

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(10) Begin management of summer fisheries April 15

in all areas.

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(11) Begin management of fall season fishery August 15

on Grays Harbor chinook stocks.

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(12) Begin management of fall season fisheries September 1

in all other areas and stocks except

for the Quillayute River fall run coho.

----------------------------------------------------------------------------------------------

(13) Begin management of Quillayute River September 20

fall run coho.

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(January 11, 1980)

CRAIG, District Judge.

The court has considered the recommendation of the Fisheries Advisory Board and the written and oral submissions and recommendations of the parties.

IT IS ORDERED THAT,

The Order of October 28, 1975, as amended by the Order of December 17, 1976 ( 459 F.Supp. 1061 ) is hereby amended as follows:

Section 1 is amended to read:

"1. Establishment and Composition of Fisheries Advisory Board.

"1.1 There is established a Fisheries Advisory Board composed as follows:

"(a) One voting member representing the State of Washington and the defendant agencies.

"(b) One voting member representing the Treaty Indian Tribes.

"(c) The court's Fisheries Technical Advisor as a nonvoting chairman. During any time that the Technical Advisor, or any alternate advisor previously designated by the court is not available, the Magistrate is hereby authorized to designate an alternate to serve as chairman and exercise any authority of the chairman or the Technical Advisor.

"(d) The members and chairman shall serve at the pleasure of their appointing entity. All such appointments shall expire on February 28 of each even-numbered year after 1980. Any incumbent may be reappointed for succeeding terms.

"(e) The voting members representing the state and the tribes with respect to any matter submitted to the Board shall be determined as hereinafter provided.

"1.2 The chairman shall give notice of and convene meetings, act as moderator, and perform such other duties as are provided herein, or agreed to by all parties, or directed by the court.

"1.3 The tribes, acting through their coordinating body, (the Northwest Indian Fisheries Commission), and the state, acting through the Director of Fisheries or Game, shall each appoint a primary representative and such alternate representatives as they from time to time deem *1422 necessary. They may designate specific alternates for specific types of matters. The primary representative for each side shall be responsible for keeping the chairman of the Board informed of the names, addresses and telephone numbers of themselves and all alternate representatives, together with the specific matters or types of matters for which a particular alternate will be the voting member. Any question concerning the designation of the appropriate voting representative will be decided by that side's primary representative, or in the case of the tribes, if the primary representative fails to act, by the Northwest Indian Fisheries Commission. Upon any further failure of such person or body to make a timely designation the chairman shall do so. The chairman shall give timely notice of each meeting of the Board to the primary representative, the appropriate alternate for each side, and as provided in section 3.1 of the Order of December 17, 1976.

ORDER RE: PUYALLUP RIVER STEELHEAD

(February 6, 1980)

CRAIG, District Judge.

This matter comes before the Court on the Puyallup Tribe of Indians' Request for Determination, dated January 31, 1980, that the Court exercise jurisdiction in this case over matters concerning Puyallup River steelhead. The Court finds that it would be in the interests of justice and more consistent resolution of fisheries disputes for this Court to exercise jurisdiction over ongoing issues raised concerning Puyallup River steelhead. Both the United States Supreme Court and the Washington state courts have indicated their belief that this Court should handle any ongoing issues concerning treaty fishing rights.

IT IS THEREFORE ORDERED

That this Court shall henceforth exercise jurisdiction over matters related to Puyallup River steelhead in the same manner as it does for all other rivers and for all other runs of salmon on the Puyallup River. The parties are directed to follow the procedures prescribed in orders of this Court for consideration of any ongoing issues related to fishing rights in Puyallup River steelhead.

ORDER RE: NOTIFICATION AND EFFECTIVE DATE OF EMERGENCY REGULATIONS

(August 26, 1980) [4]

CRAIG, District Judge.

Prior orders of this court, including section 19 of the Injunction of March 22, 1974 (384 F.Supp. at 417), section 1 of the Order of March 22, 1974, for an Interim Plan (384 F.Supp. at 420), section B.4. of the Order of October 8, 1974, to Implement the Interim Plan ( 459 F.Supp. at 1035 ), the Order of October 15, 1975, approving a Stipulation re Notice of Regulations ( 459 F.Supp. at 1060 ), Order of March 1, 1976, re Service of Documents, Order of December 11, 1976, Establishing Procedures for State Emergency Regulations ( 459 F.Supp. at 1061 ) (hereinafter the FAB Order), section 9.3 of the Memorandum of August 31, 1977, Adopting Salmon Management Plan ( 459 F.Supp. at 1107 ), and Order of January 31, 1978, as modified, Adopting Steelhead Management Plan ( 459 F.Supp. at 1118 ), have established requirements for filing, notification, and effective dates of emergency salmon and steelhead regulations. The FAB Order provides that the rules specified therein shall apply until further order of the court or until modified by agreement of all parties.

The parties agree that some of the existing requirements for filing, notification, and implementation of regulations are unnecessary and inappropriate under presently available means for faster and more *1423 economical notification. These means include the establishment of the Western Union TWX System among most of the parties. That system provides a quick method of transmitting regulations without mailing or filing with the court, while preserving a permanent record of the transmittal. Because both the National Marine Fisheries Service and the United States Coast Guard have direct access to this system, it also provides a method for prompt notification to those agencies of regulations relevant to any enforcement responsibilities they may have in case area waters. It is thus appropriate and proper to implement the agreement of the parties to use the Western Union TWX System.

Therefore, it is ORDERED as follows:

1. This Order is concerned solely with the requirements for filing emergency regulations with the court and serving or otherwise giving notice to other parties or individual fishermen prior to such regulations becoming effective or enforceable. As to those matters, the provisions of this Order supersede all inconsistent provisions of prior orders of this court with respect to the emergency regulations of any entity to which this Order applies.

2. This Order shall apply to emergency regulations affecting the management of salmon, steelhead, and such other species as are agreed to in writing by the affected parties.

3. This Order shall apply to the Washington Department of Fisheries, the Washington Department of Game and all tribes (except the Quinault, Quileute, Hoh, and Yakima Tribes, who may subject themselves to the provisions of this Order by filing with the court and serving on all parties a statement indicating the effective date of their participation). Withdrawal from participation in the TWX system shall require approval of the court.

4. Service of all state and tribal emergency fishing regulations, and of other information as required by this Order, shall be by TWX transmission through the central Western Union Infomaster computer. Regulations and other information required by this Order to be served by TWX transmission shall be transmitted on normal business days only, from Monday through Thursday between the hours of 9:00 a.m. and 2:30 p.m., or on Fridays between the hours of 9:00 a.m. and 2:00 p.m. Regulations of participating entities need not be filed with the court, or mailed to any party pursuant to procedures heretofore required by this court's Order Re: Service of Documents dated March 1, 1976.

5. Whenever the TWX cannot be used to notify any party covered by the TWX procedures of regulations or other appropriate information, due to mechanical breakdowns, power failures, or for any other reason, all such regulations and information shall be served by telegram, mail or personal service, such notification to be effective from the time of receipt as if received by TWX transmission.

6. Service of all state and tribal emergency fishing regulations, and of other information as required by this Order, shall be made upon all affected tribes and defendant state agencies and, where their enforcement duties are affected, upon the National Marine Fisheries Service and the United States Coast Guard. Service also shall be made upon the Northwest Indian Fisheries Commission, the Chairman of the Fisheries Advisory Board, and all attorneys of record who request such service, by TWX transmission if possible, otherwise by mail.

7. A written record of all information and regulations transmitted pursuant to sections 4 or 5 of this Order shall be maintained by the transmitting party for at least 12 months from the date of transmittal.

8. As to any tribe not utilizing a Western Union TWX System as set out in this Order, regulations shall continue to be served and filed in accordance with the existing procedures of previous orders of this court; provided, that certification of service may be accomplished by including on each regulation the following statement:

*1424 I certify that copies of this document were mailed prepaid on (date) , to all persons required by the Order Re: Notification and Effective Date of Emergency Regulations.

Signed _______________

Title ________________

No separate list of the persons served need be attached.

9. All tribes participating in the TWX System pursuant to this Order shall be deemed to have met the requirements of section 4.4.1 of the FAB Order.

10. Section 4.5 and both of its subsections of the FAB Order are hereby vacated and replaced with the following:

Section 4.5. The state shall notify all affected tribes of possible impending emergency regulations, along with a brief statement of the basis for the alleged emergency and supporting data that would justify the proposed emergency regulation, at least 24 hours before (and within 7 days before) the adopted emergency regulation is transmitted to the tribes. Such notice, statement of basis, and supporting data shall be served by TWX transmission, but the supporting data may be made immediately available by telephone if the state believes that method would be more effective and expeditious under the circumstances. The brief statement of the basis for an alleged emergency shall include, but not be limited to, identification of the stock or stocks needing protection and the area or gear restrictions proposed to afford the needed protection. All relevant supporting data justifying proposed or adopted emergency regulations shall be made available to the affected tribes.

Section 4.5.1. If notice is given and data furnished in conformity with section 4.5, the state emergency regulation may become fully effective as to all treaty Indian fishing 24 hours after the adopted regulation is received by the tribes. If notice or data are not given in conformity with that section, the state emergency regulation may become fully effective as to all treaty Indian fishing 48 hours after the adopted regulation, with the statement and supporting data, is received by the tribes; provided, that during the first 60 hours following state receipt of notice of a tribal regulation authorizing a fishery, a state emergency closure necessary for conservation may be adopted and transmitted to the tribes without the prior notice required by 4.5 above; and provided further that if the emergency requires an earlier effective time than those specified above, enforcement action may be taken if and only if the tribe has been given notice of the adopted regulation by TWX or by physical delivery during tribal office business hours and the tribal fisherman has been given personal notice of the regulation and an opportunity to desist from further noncompliance after such notice.

11. No tribal emergency fishing regulation authorizing a fishery shall become effective until 24 hours from the time it is received or such later time as is specified in the regulation, provided that this provision shall not limit the authority of tribes to promulgate emergency regulations, in accordance with prior orders of this court, for fisheries managed by or in conjunction with the International Pacific Salmon Fisheries Commission.

12. This Order does not apply to self-regulating tribes except where made applicable to them by Final Decision No. I and previous orders of this court; provided that it may apply by the agreement of a self-regulating tribe and the state.

13. In the event that any tribe or tribes authorize any inter-tribal entity to adopt regulations applicable to their treaty fishing, the terms "tribe" or "tribal regulations" where used in this Order shall include such entity and its regulations.

14. Whenever this Order specifies communication by TWX, a different system may be substituted by written agreement of all of the parties.

*1425 ORDER RE: CONFERENCE OF SEPTEMBER 16, 1980

(September 25, 1980) [5]

CRAIG, District Judge.

This court's Order, Findings of Fact, Conclusions of Law, and Preliminary Injunction Re: Enforcement of Limitations on Non-treaty Salmon Fisheries for 1978 and Subsequent Seasons, dated June 6, 1978, as amended June 15, 1978, was vacated by the United States Supreme Court. All other orders of this court in Phase I of this case remain in effect in accordance with their terms, except for those terms which were expressly modified by holdings of the Court of Appeals or the Supreme Court, unless and until vacated or modified by this court.

PRELIMINARY INJUNCTION RE: MINIMUM SIZE TROLL FISHING REGULATIONS

(March 5, 1981)

CRAIG, District Judge.

The Makah Indian Tribe moved for an injunction regarding State enforcement of Washington Department of Fisheries Emergency Order No. 7929 (WAC 220-28-04000A) which imposes a 28 inch minimum size troll catch limitation. The matter was referred to a magistrate for hearing, after which the Magistrate issued a report and proposed temporary restraining order. The Makah Tribe moved for confirmation of the Magistrate's report and issuance of a preliminary injunction.

After full review and careful consideration of the Magistrate's report and defendants' opposition, the Court FINDS, CONCLUDES, AND ORDERS

That the State of Washington and the Washington State Department of Fisheries and all officials and employees thereof are enjoined from enforcing Washington Department of Fisheries Emergency Order No. 79-29 (WAC 220-28-04000A) and all other subsequent orders which impose a 28" minimum size troll catch limitation upon members of the Makah Indian Tribe when fishing at usual and accustomed places in Washington coastal waters and Washington salmon catch reporting area 4B.

This Order is based upon the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. On April 30, 1979, the Washington Department of Fisheries enacted Emergency Order No. 79-29 (WAC 220-28-04000A). This regulation imposed a 28" minimum size limitation on troll fishing in Washington coastal waters and catch reporting area 4B. The justification for this minimum size limit was purportedly to "implement state regulations consistent with regulations adopted by the United States Department of Commerce" in the ocean and to assure the "wise use aspect" of resource conservation.

At the same time, non-treaty sports fishing was proceeding (and continues) in the same places under a 24" minimum size limit. [WAC 220-56-013(5) and WAC 220-56-063(4)]

2. During the fishing period of June through September, 1979, five-year averages indicate that an estimated catch of 5,000 chinook salmon in the Neah Bay area sports fishery between 24" and 28" long would occur. At the same time, if allowed to fish during that period, Makah fishermen would catch approximately 1,450 fish in the same size range. Thus, non-treaty fishermen would catch about 77.5% and treaty fishermen would catch about 22.5% of the fish in that size range. Although actual numbers of fish caught will vary depending on run size and other factors, the percentage would remain about the same. (Testimony of Makah Biologist, Al Hartt; Makah Exhibit No. 2 attached to the Makah Indian Tribe's Memorandum in Support of Motion for Temporary Restraining Order, incorporated herein by reference.)

3. There is no conservation necessity for limiting Makah commercial fishermen to the minimum 28" limitation. (Testimony *1426 of Makah Biologist, Al Hartt; Report of the Court's Advisor, Dr. Richard Whitney.)

4. The estimated dollar loss to Makah trollers in 1979 from the prohibition on under-28" fish is approximately $20,000.00. (Testimony of Makah Biologist, Al Hartt, Makah Exhibit No. 2, supra, at ¶ 3.)

5. The issuance of this injunction is necessary to prevent irreparable injury to the plaintiff Makah Indian Tribe and its fishermen.

CONCLUSIONS OF LAW

1. Limiting Makah fishermen to a minimum 28" size for troll caught salmon is not necessary for conservation as that term was defined in Final Decision No. 1, for the following reasons:

(a) such limitations are not "required to prevent demonstrable harm to the actual conservation of fish, i.e., ... essential to the perpetuation of a particular run or species of fish." ( U.S. v. Washington, 384 F.Supp. 312 at 415 .)

(b) the state has not shown nor attempted to show that "existing tribal regulation or enforcement is inadequate to prevent demonstrable harm to the actual conservation of fish." Id.

2. The actions of the State of Washington herein constitute illegal discrimination in that the State's regulations grant in effect the entire run of salmon in the 24" to 28" range to sports fishermen.

3. State limitations on minimum size troll caught fish on the basis that such limitation will "assure the wise use aspect" of resource conservation are illegal under Final Decision No. 1 because State power to regulate fishing "does not include the power to determine for the Indian tribes what is the wisest and best use of their share of the common resource." ( U.S. v. Washington, supra, at 401.)

4. Irreparable injury, loss, and damage will occur to the Makah Indian Tribe and fishing members thereof if the State is allowed to continue to limit Makah fishing to 28" minimum size troll caught salmon.

THEREFORE, IT IS ORDERED that the State of Washington and the Washington State Department of Fisheries and all officials and employees thereof are enjoined from enforcing WDF Emergency Order No. 79-29 and all other regulations which seek to impose a 28" minimum size troll catch limitation upon members of the Makah Indian Tribe when fishing at usual and accustomed places in Washington coastal waters and Washington salmon catch reporting area 4B.

This injunction shall remain in effect until further order of this Court.

ORDER REGARDING ATTORNEY'S FEES

(May 4, 1981)

CRAIG, District Judge.

This Court enters the following order with respect to the Tribes' Renewed Motion for Award of Attorney's Fees:

1. Judge Boldt in his pre-trial order and in Final Decision No. 1 found jurisdiction in Phase I of United States v. Washington under 28 U.S.C. § 1343 (3) and (4). Pretrial Order paragraph 1(c); United States v. Washington, 384 F.Supp. 312, 399 (W.D. Wash.1974), Conclusion of Law 1c. Section 1343(3) and (4) provides for district court jurisdiction over (1) actions brought to redress any deprivation, under color of state law, of any right, privilege or immunity secured by the Constitution, and (2) actions brought under any Act of Congress providing for protection of civil rights. In United States v. Washington the Tribes alleged, and ultimately prevailed upon, a cause of action under 42 U.S.C. § 1983 , one of the civil rights statutes referred to, in that they alleged and proved deprivations, under color of state law, of "rights, privileges and immunities secured by the Constitution and laws" within the meaning of § 1983. See United States v. Washington, Conclusions of Law 38, 39, 40, 41, 42, 43, 44 and 47, 384 F.Supp. at 403-04 . Specific citation of 42 U.S.C. § 1983 in the complaint or pre-trial order is not necessary in order to bring the action under the Civil *1427 Rights Acts. Paynes v. Lee, 377 F.2d 61, 63 (5th Cir.1967); Holladay v. Roberts, 425 F.Supp. 61, 64 (N.D.Miss.1977).

2. Since claims under 42 U.S.C. § 1983 are specifically covered by The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 , the Civil Rights Attorney's Fees Awards Act authorizes attorney fees in these proceedings. United States v. Washington was pending at the time that The Civil Rights Attorney's Fees Awards Act of 1976 was enacted and the plaintiff intervenor Tribes are entitled to an award of attorneys' fees for services rendered in United States v. Washington.

3. The application of the plaintiff intervenor Indian Tribes for attorneys' fees in Phase I was filed in a timely manner, and remains pending for decision.

4. The 11th Amendment is not a bar to a prevailing party plaintiff recovering attorneys' fees from a state under The Civil Rights Attorney's Fees Awards Act. Hutto v. Finney, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1978).

5. As this Court reads Judge Boldt's original decision on the Tribes' motion for attorneys' fees, Judge Boldt rejected the applicability of the "bad faith" rationale for awards of attorneys' fees in 1974. 66 F.R.D. 477 (W.D.Wash.1974). This Court does not disturb Judge Boldt's ruling in that regard.

6. The plaintiff intervenor Tribes are the prevailing parties in United States v. Washington within the meaning of The Civil Rights Attorney's Fees Awards Act. Plaintiff intervenor Indian Tribes are not entitled to an award of attorneys' fees for participation in cases outside the framework of United States v. Washington, but are entitled to an attorney fee award for the services reasonably necessary to prepare for, try, prosecute and implement the United States v. Washington decision, including the related appeals to the Ninth Circuit Court of Appeals and the United States Supreme Court.

7. The entitlement of the plaintiff Tribes to attorneys' fees for services rendered in United States v. Washington includes all proceedings within the framework of that case, including appeals, through the remand to the District Court by the Ninth Circuit Court of Appeals pursuant to the United States Supreme Court's mandate in 1979. This Court finds that, prior to this proceeding, there have been no "prevailing parties" within the meaning of The Civil Rights Attorney's Fees Awards Act since the remand to the District Court in 1979.

8. This court finds it appropriate to appoint a special master pursuant to Federal Rule of Civil Procedure 53 to determine the specific attorney's fee to be awarded to the plaintiff intervenor Tribes under The Civil Rights Attorney's Fees Awards Act of 1976. Accordingly, Magistrate Weinberg, the full-time magistrate for the Western District of Washington at Seattle, is hereby appointed special master. This court, having determined that plaintiff intervenor Tribes are entitled to an award of a reasonable attorney's fees pursuant to 42 U.S.C. § 1988 , therefore refers the matter of determining the specific fee to be awarded to Magistrate Weinberg. Magistrate Weinberg shall make a recommendation to this Court resolving all issues necessary for the determination of the appropriate award. The special master shall determine the total number of compensable hours reasonably spent by tribal attorneys in the preparation, trial, prosecution and implementation of the United States v. Washington decision and related appeals. The special master shall determine the proceedings for which the Tribes are entitled to recover fees. The special master is given specific instructions to consider the 12 factors adopted by the Ninth Circuit Court of Appeals in Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (1975), and to consider the other appropriate variables utilized by the courts in setting awards under 42 U.S.C. § 1988 . The special master is further directed to prepare a report recommending to this Court the specific attorney's fees to be awarded the Tribes. After Magistrate Weinberg's report is submitted, this Court *1428 will set a time for hearing so that all parties will have an opportunity to discuss the validity or invalidity of the Magistrate's recommendation. [6]

ORDER RE: ALLOCATION OF QUINAULT RIVER STEELHEAD

(May 8, 1981) [7]

CRAIG, District Judge.

The Report and Recommendations of Magistrate John L. Weinberg filed April 7, 1981, doc. # 7464, are approved and adopted with modifications. The pertinent portion of the Report and Recommendations, as modified by the court, is as follows:

FACTUAL SETTING

There appears to be no genuine dispute as to the basic facts relating to the State of Washington's motion for a temporary restraining order or preliminary injunction concerning steelhead trout that enter the Quinault River from the Pacific Ocean. The real dispute turns upon the proper application of the case law to this factual setting.

1. Geography. The Quinault Reservation comprises about 190,000 acres or almost 300 sq. miles. It is shaped roughly in the form of a triangle, with one edge consisting of about 24 miles of Pacific coastline. The reservation tapers to Lake Quinault about 21 miles inland, which is contained within the reservation and represents its easternmost portion. The mouth of the Quinault River is on the reservation, as is the entire portion of the river between the Pacific Coast and Lake Quinault. The river originates upstream of Lake Quinault, however, in lands entirely outside the reservation.

2. Steelhead Run. Returning steelhead enter the mouth of the Quinault and head upstream every year, between about mid-November and the end of April. Like salmon, steelhead generally return to their spawning grounds. They are not quite as dependable as salmon in this respect, however, and there is somewhat more "straying." Two hatcheries and a penned rearing facility on the reservation release a substantial number of steelhead. There are also wild steelhead, some of which originate in and below Lake Quinault (i.e. on the reservation), and others above the lake (off the reservation).

As a result, if no returning steelhead at all were taken from any portion of the Quinault River system, some would never leave the reservation, where their spawning grounds are located. These steelhead will be designated "reservation fish." [8] Others, however, would migrate up the river, through Lake Quinault, and then further upstream to areas off the reservation. These steelhead will be designated "through fish."

The Tribe and the United States estimate that, in 1980-1981, 85% of the fish entering the Quinault River are reservation fish. While the State disputes the precise accuracy of this number, there seems to be little dispute that, even if there were no fishing, only a small minority of the steelhead entering the Quinault River would ever pass through Lake Quinault and leave the reservation. The parties advise that the Fisheries Advisory Board can, if directed, make a reliable determination for a given year of the proportions of reservation and through fish.

3. Fishing. Based upon run predictions and various biological factors, a total harvestable number of steelhead can be set each year for the entire Quinault River run. For 1980-1981, that number will be *1429 approximately 15,000 fish. The parties agree that, for conservation reasons, the total harvest must in no event exceed that amount and, if possible, should not be substantially less.

The Tribe and its members have the exclusive right to take steelhead on the reservation, subject to two minor exceptions discussed below. They do so, pursuant to Tribal fishing regulations, by net fishing, which is relatively efficient. Non-treaty fishermen take steelhead by "sport fishing" techniques — i.e. by hook and line. Even in a good year, this technique is not particularly "efficient," compared to net fishing. This year, weather conditions have caused so much turbidity of the river that the fish cannot see the lures. The harvest by sport fishermen is therefore of de minimis proportions.

While non-treaty fishermen on the Quinault River do most of their steelhead fishing above Lake Quinault, off the reservation, some hire Indian guides, and are therefore permitted to fish on the reservation.

As of January 19, 1981, the Quinault Tribal catch on the Quinault River from November 1, 1980 was 9,462 steelhead. [9] This represents approximately 63% of the projected maximum 1980-1981 harvest for all fishermen for all portions of the river.

CONTENTIONS OF THE PARTIES

Reduced to simplest terms, the contentions of the parties are as follows:

The State asserts that treaty and non-treaty fishermen are each entitled to half of the harvestable steelhead that enter the Quinault River system, regardless of where the fish are destined or are taken.

The United States, together with the Tribe and other intervenor tribes, claim that treaty fishermen are entitled to the sum of: (a) 100% of the harvestable steelhead that are reservation fish; and (b) 50% of the harvestable steelhead that are through fish. They contend that the non-treaty fishermen are entitled only to the other 50% of the through fish.

While the issue is now essentially moot for the 1980-1981 steelhead run, all parties agree that the legal issue of the share to which each group is entitled is an important one for allocations of runs in future years.

LEGAL PRINCIPLES ESTABLISHED IN PRIOR CASES

From the welter of decisions on the fishing rights of the treaty Indians in the State of Washington, several relevant basic principles emerge.

1. Apportionment. The Stevens Treaties require apportionment, between treaty Indians and non-treaty fishermen, of the harvestable portion of each run that passes through a "usual and accustomed" fishing ground for treaty Indians. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 685 , 99 S.Ct. 3055, 3074 , 61 L.Ed.2d 823 (1979) (" Passenger Fishing Vessel ").

2. Size of Shares. As to those runs that are subject to allocation at all, the maximum share of the treaty Indians is 50% of the harvestable portion of the run which passes through its customary fishing grounds. The treaty Indians are entitled only to a smaller portion, if such a portion is sufficient to provide the treaty Indians a moderate living. Passenger Fishing Vessel, 443 U.S. at 686-687 , 99 S.Ct. at 3074-3075 . The burden is on the State to show that some share less than 50% would be sufficient to provide the Indians a moderate living. United States v. State of Washington (Phase II), 506 F.Supp. 187, 208 (W.D.Wash.1980), en banc appeal pending (No. 81-3111 9th Cir.). [Appeal decided April 29, 1985, 759 F.2d 1353 ]

3. No Share If No Access. The allocation rules apply only to those runs of fish which, in the course of their migration, are subject to harvest both by treaty and non-treaty fishermen. In other words, *1430 treaty fishermen have no right to any portion of a run which at no point enters or passes through a usual and accustomed fishing ground.

4. Fish Counting Rules. Once a fish run has been identified as subject to allocation between treaty and non-treaty fishermen, the courts have developed a number of rules governing how fish catches are counted and applied against those allocations. Those rules include the following:

(a) On a run that passes through a reservation, then goes upstream to an area where non-treaty fishermen have access, fish caught by treaty fishermen on the reservation count toward the overall share of treaty fishermen. Passenger Fishing Vessel, 443 U.S. at 687 [ 99 S.Ct. at 3075 ].

(b) Hatchery-bred fish are to be treated in the same manner as "natural" or "wild" fish, for purposes of allocations and counting against shares. See United States v. State of Washington (Phase II), supra.

5. Interference With Upstream Catch. Where a fish run passes through an area in which either treaty or non-treaty fishermen have exclusive access, that group cannot take so many fish as to impair the rights of upstream fishermen to take their fair share. Puyallup Tribe v. Washington Department of Game, 433 U.S. 165 , 97 S.Ct. 2616 , 53 L.Ed.2d 667 (1977) (" Puyallup III "); and U.S. v. Winans, 198 U.S. 371 , 25 S.Ct. 662 , 49 L.Ed. 1089 (1905).

6. Proper Harvest to Be Assured. Allocations of fish should never be done in a manner which would result either in over-harvest or under-harvest. If a group of fishermen — be it the treaty fishermen or non-treaty fishermen — is not in a position to catch all the fish to which it would otherwise be entitled, the remainder should be re-allocated to the other group.

APPLICATION TO THIS CASE

If all of the steelhead which enter the mouth of the Quinault River swam upstream only to points within the reservation (i.e., all were reservation fish), this case would pose no problem. The treaty Indians would be entitled to all of the harvestable steelhead.

Likewise, if all of the steelhead swam through the reservation and into the portion of the Quinault River above Lake Quinault (i.e., all were through fish), there would likewise be little problem. The case would therefore be identical in most respects to Puyallup III. The treaty and non-treaty fishermen would each be entitled to 50% of the harvestable run. Fish caught by the Indians on the reservation would count toward their allocation, by virtue of Passenger Fishing vessel. Hatchery fish would likewise count, by virtue of the Phase II decision. If non-treaty fishermen were able to show that the treaty Indians had taken, or were threatening to take on the reservation, more than their 50% share of the entire run, the non-treaty fishermen would be entitled to relief from this court, as they were in Puyallup III.

Passenger Fishing Vessel and Puyallup III both involved through fish. In this case, by contrast, only one-seventh of the steelhead are through fish. The other six-sevenths are reservation fish, which never reach a joint use area.

Allocating 50% of all of the steelhead entering the Quinault River respectively to treaty and non-treaty fishermen would work manifestly unfair results. The vast majority of the fish are reservation fish. Why should the fact that a few of them would swim beyond the reservation and therefore become accessible to non-treaty fishermen, entitle non-treaty fishermen to 50% of the entire number of fish entering the Quinault River? Indeed, even if allocated a 50% share, non-treaty fishermen could not begin to harvest these fish. Even if they were the only fishermen in the stream above Lake Quinault (and they are not), and even if they could catch every steelhead which swam above Lake Quinault (and they have difficulty catching any this year), the most they could take would be one-seventh of total number of fish entering *1431 the Quinault River. Furthermore, this does not allow for escapement of any of the fish that swim above Lake Quinault. The allocation of 50% of all of the steelhead to the non-treaty fishermen therefore could not possibly be justified.

By the same token, however, the treaty fishermen cannot be permitted to harvest steelhead at will, and without limitation, on the reservation. The portion of the river above Lake Quinault is a joint use area. Although the number of steelhead which would reach that area is relatively small, nevertheless the non-treaty fishermen are entitled to at least their share of the harvestable portion of those fish. The United States conceded as much in its memoranda before this court. If the treaty fishermen are permitted to harvest as many fish as they see fit on the reservation, a possible result is that no harvestable fish would be available to the non-treaty fishermen above the lake.

It is therefore my recommendation that the court regard the steelhead which enter the Quinault River as comprising two separate runs: those which have been designated reservation fish herein, and those which have been designated through fish. The court should find that treaty fishermen are entitled to take the entire harvestable number of reservation fish. The two groups are each entitled to 50%, however, of the through fish.

Steelhead taken by treaty fishermen would count toward their allocation, whether taken within or outside the reservation. Passenger Fishing Vessel. Hatchery bred fish would count toward their allocation in the same manner as other fish. United States v. State of Washington (Phase II).

Likewise, steelhead caught by non-treaty fishermen would count toward their allocation, whether taken above Lake Quinault or within the reservation (e.g., as part of the Indian guide fishery, or by owners of land within the reservation).

Counsel advised that, when a fish is taken on the reservation, it is not possible to identify whether it is a reservation fish or a through fish. This will not be necessary, however, in giving effect to the foregoing allocation. As discussed above, it apparently is possible to predict the total number of steelhead which will enter the Quinault River in a given year, the proportions of those fish which are reservation fish and through fish, and the appropriate level for harvest. Using the legal conclusions recommended above, the Fisheries Advisory Board can then use this data to determine the share for each group for a given year. Steelhead can then be credited against those shares, wherever harvested.

It is respectfully submitted that the foregoing procedure would be fair to both groups, and fully consistent with prior court determinations in this area.

In addition, the foregoing would parallel one which has already been made for the Lower Columbia River. The United States and the Tribe assert that the Lower Columbia presents a highly analogous situation, with the positions of the parties reversed. They assert that non-treaty fishermen have exclusive fishing access to the Lower Columbia River. There are adjudicated treaty fishery rights, however, on the Columbia above Bonneville Dam. Some, but not all, of the fish available in the Lower Columbia River are destined for the area above Bonneville Dam. According to these parties, the State has contended, and the federal courts have agreed, that the non-treaty fishermen are entitled to harvest all of those fish in the Lower Columbia which are not destined to travel above Bonneville Dam. The treaty fishermen are entitled, however, to a 50% share of those fish headed to or through the joint use areas. Thus, they contend, the courts have already applied a "combined run" principle in another situation where fish enter an exclusive access area, and only some of the fish continue to a joint use area.

If the court accepts the conclusions recommended above, the motion for injunctive relief must be denied. The State has shown that the treaty fishermen have taken more than 50% of all of the harvestable steelhead. But it has not shown that the treaty fishermen have taken so many as to *1432 impinge upon the proper share of the non-treaty fishermen: 50% of the through fish. The State has also failed to show that the non-treaty fishermen would be in a position to take appreciably more steelhead if the Indian fishery were enjoined. The court's strong policy of assuring a full harvest would require such a showing before injunctive relief could be granted.

CONCLUSION

The Conclusions recommended by the Magistrate are modified and adopted as follows:

1. Defendant's Motion for a Temporary Restraining Order or Preliminary Injunction is DENIED.

2. Of the steelhead trout which enter the Quinault River in any given annual run, non-treaty fishermen are entitled to a 50% share of the harvestable portion of those fish which, if not subjected to prior interception, would be expected to migrate above Lake Quinault. Treaty fishermen are entitled to the balance of the harvestable portion of steelhead which enter the Quinault River.

3. All steelhead taken by fishermen count toward their allocation, whether taken on or off the reservation.

4. Hatchery-bred fish shall be treated in the same manner as natural or wild fish.

5. The Fisheries Advisory Board, applying the foregoing principles and utilizing information as to run sizes and distribution, and other available data, should endeavor to determine escapement goals and the respective shares for treaty and non-treaty fishermen of steelhead trout entering the Quinault River.

FINAL DECREE AND ORDER RE: TREATY STATUS OF JAMESTOWN CLALLAM TRIBE OF INDIANS

(May 8, 1981)

CRAIG, District Judge.

Based on the Findings of Fact and Conclusions of Law entered this date, it is ORDERED that

1. the Jamestown Clallam Tribe of Indians is decreed to be a treaty tribe entitled to exercise on behalf of itself and its members treaty fishing rights under the Treaty of Point No Point ( 12 Stat. 933 ) pursuant to all the orders and rulings in this case when:

(1) It provides certification and identification of its tribal fishermen as specified in paragraph (f), 384 F.Supp. at 341 ; and

(2) It adopts and files with the court and all other parties tribal regulations for the fishing activities of its members and specifying the areas to be opened to fishing by tribal members; and

(3) It submits to the court, pursuant to paragraph 25(f) of the Injunction of March 22, 1974 ( 384 F.Supp. at 419 ), a request to determine its specific usual and accustomed fishing places, with prima facie evidence in support of its request. [10]

2. Nothing in this Order constitutes a determination as to the location of any specific usual and accustomed fishing places of the Jamestown Clallam Tribe. The absence of a determination that a specific fishing area is a usual and accustomed fishing place of the tribe shall not preclude the tribe or its members from exercising treaty fishing rights at such location if opened under a tribal regulation filed pursuant to paragraph 1 above and if the location has been identified in a request for determination submitted pursuant to said paragraph 1, subject to the authority of any other party to contest the location within seven days of service of such request consistent with the prior judgment and orders of this court.

ORDER APPROVING MAGISTRATE'S REPORT RE: TREATY STATUS OF JAMESTOWN CLALLAM TRIBE OF INDIANS

(May 8, 1981)

CRAIG, District Judge.

The following Findings of Fact and Conclusions of Law recommended by the Magistrate are accepted and adopted.

*1433 SUPPLEMENTAL FINDINGS OF FACT [11]

326. The Jamestown Clallam Tribe of Indians is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes, bands or groups of S'Klallam (or Clallam) Indians which were parties to the Treaty of Point No Point, 12 Stat. 933 . This tribe is recognized by the United States Department of the Interior as a currently functioning Indian tribe of Clallam Indians who have not severed their tribal relations, which has continuously maintained a tribal government with limited political powers over its members, and with which the United States, through the Department of the Interior, acknowledges a government-to-government relationship, (45 Fed.Reg. 81890; Ex. USA-M-22, Attachments A and B.)

327. The tribe has a constitution and bylaws adopted on November 16, 1975, and operates as an identifiable and distinct entity on behalf of its members. (Ex. USA-M-22, p. C-2 and Attachment D.) Its organizational structure, governing documents, membership requirements and membership roll have been recognized by the Department of the Interior for purposes of its administration of Indian affairs. (Ex. USA-M-22, p. C-4.) The tribe does not have a current federally-approved tribal membership roll but does have a roll prepared by the tribe in November 1978. (Ex. USA-M-22, pp. C-4, C-38.) Fifty-nine percent of the members live in Jamestown or within 35 miles of that settlement. (Ex. USA-M-22, pp. C-3, C-78.)

328. The Clallam Indians lived in about a dozen largely autonomous villages which were closely linked by a common language and culture and by extensive patterns of marriage and societal obligation. The Clallams were highly dependent on the sea for their food, the abundance of which allowed them to develop a rich and complex culture. (Ex. USA-M-21 at 23; USA-M-22, p. C-57.)

329. The only reservation specifically set aside by the Point No Point Treaty was located at the southern end of Hood Canal in Skokomish territory, far removed from the Clallam villages and fishing grounds. The treaty expressly preserved the Clallam's right to continue to fish at their usual and accustomed fishing grounds. Consequently the S'Klallam Tribe never took up residence on that reservation but instead remained basically in or near their aboriginal homeland and fishing grounds. (Ex. USA-M-21, Attachment A, pp. 2-4; Ex. USA-M-22, pp. C-1, C-51.)

330. The largest Clallam community lived in the area near the Dungeness River and Sequim Bay. The Jamestown Clallam Tribe has evolved directly and without a break from that community, although some Jamestown families came from Clallam Bay and from Port Discovery. (Ex. USA-M-21, Attachment A, p. 6.)

331. In 1874 a group of Clallam Indians, under the leadership of Lord Jim Balch, the son of Tuls-met-tum, one of the Point No Point Treaty signatories, purchased approximately 222 acres of land near Dungeness, Washington, which they subdivided to individual families. The settlement was named Jamestown in honor of Lord Jim. From the outset that group and their successors have continuously maintained a separate, distinct, and cohesive Indian community with a continuous informal governmental structure and political leadership. (Ex. USA-M-22, pp. C-3-4, C-6-7; USA-M-21.) The community has been considered a distinct group by local non-Indians in the area. ( Id., p. C-6.)

332. From the establishment of Jamestown in 1874 the Bureau of Indian Affairs, and in some instances the Indian Health Service, has provided this group with services and material aid in the form of agricultural tools, seed, and fruit trees, assistance in building and maintaining an Indian *1434 school at Jamestown until 1926, assistance in constructing a community water system, and organization of an Indian police force. ( Id., p. C-53; Ex. USA-M-21, Attachment A, pp. 21-22.)

333. By 1912, the various bands of Clallam Indians had established themselves as distinct entities along the northern Olympic Peninsula. There were separate groupings in the Elwha area, at Jamestown, and at Port Gamble. Jamestown was their largest settlement. (Ex. USA-M-22, pp. C-11-12, C-53, C-54; Ex. USA-M-21, Attachment A, p. 11.) During the Indian Reorganization Act period (1935-39) the Bureau of Indian Affairs debated whether to try to reorganize the Clallam Tribe as a single entity with two or three separate districts, or as three separate entities. Because of the wide distance separating the groups, the BIA ultimately purchased separate tracts of land in trust along the Elwha River and at Port Gamble for western and eastern groups, respectively, which it thereafter allowed to organize as separate entities under the Indian Reorganization Act. (Act of June 18, 1934, 48 Stat. 987 , 25 U.S.C. § 476 .) Jamestown was not then organized as an IRA entity, although both the BIA and the Indian Health Service continued dealings with them as a group. Although the group's land was not held in trust or restricted fee status under direct BIA control, the settlement has remained predominantly a Clallam Indian Community. (Ex. USA-M-22, pp. C-25-26.)

334. In 1978 the Department of the Interior established formal procedures for determining and acknowledging whether particular entities claiming Indian tribal status are currently an "Indian tribe" having a government-to-government relationship with the United States. See 25 CFR (1984) p. 825 [now Part 83]. On February 10, 1981, the Department of the Interior's determination under those regulations that the intervenor Jamestown Clallam Tribe of Indians was such a tribe became final. (45 Fed.Reg. 81890; Ex. USA-M-22, Attachments A and B.) The Tribe is now entitled to the benefits of the IRA. (Ex. USA-M-22, Attachment B.) It will be entitled to organize pursuant to Section 16 of the IRA once it has acquired a tribal land base. Id.

SUPPLEMENTAL CONCLUSIONS OF LAW

82. The intervenor Jamestown Clallam Tribe of Indians is a "treaty tribe" within the meaning of paragraph A8 of this court's Declaratory Judgment and Decree of March 22, 1974 ( 384 F.Supp. at 406 ) and holds for itself and its members a right under the Treaty of Point No Point, 12 Stat. 933 , to fish at its usual and accustomed places outside of reservation boundaries. United States v. Washington, 520 F.2d 676 , 693 (9th Cir.1975). The tribe is entitled to exercise this fishing right in the manner prescribed by the opinions and decrees of the court.

ORDER RE: SET-NET FISHING IN MUKKAW BAY

(September 2, 1981)

CRAIG, District Judge.

The Court has reviewed the Motion to Hold the State of Washington ("State"), the Washington Department of Fisheries ("Fisheries"), and the Prosecuting Attorney for Clallam County ("Prosecutor") in Contempt.

IT IS THEREFORE ORDERED THAT:

(1) The Court approves and adopts Magistrate John L. Weinberg's Report and Recommendation on Makah Fishing at Mukkaw Bay, except as amended by Minute Order;

(2) The Court finds and declares that its previous orders and injunctions limit all state regulation of treaty fishing, without regard to whether the State relies upon a statute or regulation specifically listed in paragraph 6 of the Injunction entered March 22, 1974 ( 384 F.Supp. at 415 );

(3) The Court finds that Fisheries and the Prosecutor have interfered with the treaty fishing rights of the Makah Indians, in violation of this *1435 court's previous injunction and other orders;

(4) Under all the circumstances, however, the Court denies the motion to hold the State, Fisheries and the Prosecutor in contempt at this time;

(5) The Prosecutor is directed to take steps immediately to dismiss the pending prosecutions, with prejudice;

(6) All respondents are directed to return to the Makahs immediately all nets and related gear seized by Fisheries and not already returned;

(7) Fisheries and its officers and agents are enjoined from further interference with set-net fishing by Makah Indians in Mukkaw Bay, except as such regulation is specifically permitted by orders of this court;

(8) The request by the Makahs for compensatory and punitive damages is denied, without prejudice to the rights of all parties in Case No. C81-871M;

(9) The motion by Fisheries for reconsideration, for allowance of additional testimony or in the alternative for clarification, is denied.

MAGISTRATE'S REPORT AND RECOMMENDATION ON MAKAH FISHING AT MUKKAW BAY, AS AMENDED BY MINUTE ORDER OF SEPTEMBER 8, 1981.

JOHN L. WEINBERG, United States Magistrate.

INTRODUCTION

This proceeding arises from a dispute as to whether Makah Indians may fish for salmon with marine set-nets in Mukkaw Bay, immediately off the Pacific Coast of their reservation and south of Cape Flattery.

The State of Washington Department of Fisheries ("Fisheries") asserts such fishing violates R.C.W. 75.12.210, which prohibits any person from fishing for salmon with nets in this area of the ocean. Fisheries seized the nets of, and has initiated criminal prosecutions against, five Makah fishermen who had set their nets in Mukkaw Bay. Defendant Meiner, as Prosecuting Attorney for Clallam County (the "Prosecutor"), is responsible for prosecuting the criminal action.

These five fishermen, and the Makah Tribe ("Makahs"), assert that this court specifically enjoined the State of Washington, Fisheries, and the Prosecutor from such interference and regulation in its 1974 "Injunction" and accompanying findings, conclusions and orders. According to the Makahs, Fisheries may do so only upon a prior showing of conservation necessity, which Fisheries has not made and, in any event, could not make. In their motion papers, the Makahs seek only an order holding the State of Washington, Fisheries, and the Prosecutor in contempt. At oral argument, however, the Makahs also requested the court:

(a) Declare enforcement of R.C.W. 75.12.210 unlawful;

(b) Declare the seizure of the nets unlawful;

(c) Enter an order directing the Prosecutor to release the nets, dismiss the prosecutions, and pay plaintiffs' fishing losses; and

(d) Impose a fine of $1,000 per day until defendants fully comply.

One additional complication is that the Makahs have also filed an action in this court under the Civil Rights Act, seeking damages and other relief arising from the same facts. (Case No. C81-871M). Defendants in that action are Fisheries and three of its officials. This court's ruling in this case upon the legality of the seizures and prosecutions could have a significant impact upon the Civil Rights Act claims.

FACTUAL BACKGROUND

Both sides apparently anticipated this confrontation over marine set-net fishing. Fisheries requested advice from the Attorney General of the State of Washington as to whether § .210 applied to Makah Indians. An Assistant Attorney General replied *1436 in the affirmative in a memo dated June 19, 1981 (exh. MK-M-10). His rationale was that the federal court never specifically enjoined the application of this statute to Treaty Indians.

The Makah Tribe, however, issued a fishing regulation on July 2, 1981, opening all marine set-net areas to Makah Treaty fishing.

The Fisheries Advisory Board convened on July 8, 1981 [12] apparently to consider this specific dispute. At that meeting, Morris Barker, a Fisheries biologist who serves as Assistant Chief of the Harvest Management Division for Fisheries, conceded there was no conservation necessity for prohibiting marine set-net fishing by Makah Indians in Mukkaw Bay.

Later that day, counsel for the Makahs sent a Telex (exh. MK-M-6) and a letter (exh. MK-M-5) to Fisheries and the State Attorney General. In those communications, counsel asserted the continuing right of Makahs to engage in treaty fishing in Mukkaw Bay, claiming that enforcement of § .210 was implicitly within this court's injunction. The State was put on notice that, if it interfered with those fishing rights, the Makahs would seek a contempt order and bring a civil rights action.

It happened just that way. Fisheries Officer John Cook seized the nets of these five fishermen in Mukkaw Bay on July 10, 1981. Based upon the identification on the nets, Cook issued criminal citations to the five fishermen for violation of § .210. Those prosecutions are pending in Clallam County. The Prosecutor has agreed to defer further prosecution pending the outcome of this proceeding.

PROCEDURE IN THIS COURT

The Makahs filed their motion for a finding of contempt on July 24, 1981. The court referred it to the undersigned for a hearing and a report and recommendation.

Pursuant to an Order to Show Cause, the Makahs, Fisheries and the United States appeared at a hearing on July 29, 1981. The Makahs introduced exhs. MK-M-5 through MK-M-10, and brief testimony from Stephen Joner, Makah Fisheries Biologist. Fisheries filed two affidavits, but no memoranda, and offered no evidence at the hearing. All parties, including the United States, presented oral argument.

At the conclusion of the hearing, I indicated:

(a) I would recommend the court conclude that its previous orders covered § .210 and that they enjoined the actions taken by Fisheries in this case;

(b) the appropriate remedy—i.e., an order of contempt and/or some other form of relief—remained to be determined.

I further indicated, however that while this Report and Recommendation was being prepared, the parties could and should resolve the dispute by agreement. Specifically, I suggested both sides consider an agreed disposition where the State would immediately: (a) terminate the prosecutions; (b) provide reasonable assurance there would be no further interference of this type; (c) return the seized nets; (d) provide reasonable compensation to the five fishermen for lost fishing time. Counsel were reasonably optimistic they could work out such a disposition.

Since the hearing, however, it has become apparent that the prospects of any agreed disposition are remote. The criminal prosecutions remain pending, and the State will not dismiss them unless the Makahs agree to a bail forfeiture. Fisheries is willing to return the nets if the Makahs stipulate that they used the nets for salmon fishing in Mukkaw Bay. But Fisheries has not taken any definitive action to assure the Makahs they can safely fish Mukkaw Bay again. There has been no offer of compensation. Lurking in the background, and impeding any settlement, is the pending civil rights action brought by the Makahs.

*1437 Nine days after the hearing, Fisheries moved (a) for reconsideration, (b) for allowance of additional testimony; (c) or in the alternative, for "clarification" as to the validity of federal regulations prohibiting net fishing for salmon in the Pacific. Fisheries seeks to show the background of enactment of § .210, and the existence of similar federal regulations.

ANALYSIS

1. Preliminary Issues. There is no dispute as to most relevant factual matters. The five fishermen were members of the Makah Tribe. They allege, and Fisheries has not denied, that Mukkaw Bay is an "usual and accustomed fishing place" for the Makahs. See U.S. v. Washington, 384 F.Supp. 312, 364 . They were engaged in Treaty fishing for salmon, pursuant to a duly enacted tribal fishing regulation, and their nets were properly identified as those of Treaty fishermen. All of their nets were less than one mile from shore.

2. Conservation Necessity. There is no real dispute on this issue either. Prior to the seizures and citations, there certainly was no showing of any conservation necessity, to the satisfaction of either the Makah Tribe or of this court. Since the seizures, Fisheries has offered two affidavits suggesting that in the open ocean there is a significant "drop-out" rate from gill nets, resulting in high mortality and wastage. As shown by the testimony of Mr. Joner, however, this has no application to the protected and relatively calm waters of Mukkaw Bay. Fisheries' half-hearted attempt to suggest a conservation problem, after the fact, is entirely unpersuasive. Mr. Barker of Fisheries correctly characterized the issue on July 8, 1981 as a legal question, rather than a conservation question. (exh. MK-M-8).

3. Parallel Federal Regulation. In its post-hearing motion, Fisheries contends that federal regulations issued by the Department of Commerce likewise make it unlawful for any person to fish or take salmon by use of any type of net in the Pacific Ocean. Fisheries officers assist in enforcing the federal regulation, a copy of which is attached to the motion.

But the existence of this federal regulation has no significance in this proceeding, for at least two reasons. First, Fisheries was enforcing a state statute, not the federal regulation, when it seized the nets and cited the Makahs. But more significantly, the federal regulation applies in the Fishery Conservation Zone, from three to 200 miles off shore. It has no relevance to fishing within one mile from shore.

4. R.C.W. 75.12.210 and the "Surfline Agreement." Representatives of Canada, Washington, Oregon and California met in Seattle in 1957 (exh. MK-M-7), and devised a coordinated program to combat the "substantial depletion of salmon" resulting from ocean net fishing. R.C.W. 75.12.200. The agreement they reached at that conference is known as the "Surfline Agreement." There is, however, neither a formal treaty nor a written, signed agreement of any kind. Following the conference, the State of Washington enacted R.C.W. 75.12.210:

"75.12.210— Net fishing for salmon in certain Pacific Ocean waters unlawful. It shall be unlawful for any person to fish for or take, by the use of any type of net, any salmon within the waters of the Pacific Ocean, over which the state has jurisdiction, lying westerly of the following described line: [area includes Mukkaw Bay]."

Thus, the Washington legislature perceived a conservation necessity for such regulation in 1957. At this time, however, no similar necessity has been shown, at least with respect to net fishing in Mukkaw Bay.

Fisheries suggest that, because § .210 was adopted as part of a coordinated program involving other states and Canada, it falls beyond the reach of this court's orders restricting state interference with treaty fishing rights. Fisheries cites no authority for this proposition, however, and I perceive none.

*1438 5. Did This Court Enjoin Enforcement of § .210? On March 22, 1974, this court enjoined Fisheries and others from applying or enforcing against treaty tribes any of a list of specific state statutes and regulations. 384 F.Supp. at 415 , paragraph 6. The list did not include R.C.W. 75.12.210. Fisheries therefore argues it was free to enforce that statute against the Makahs. This is the crux of the defense Fisheries offers for its actions, and the principal issue presented by the contempt motion.

This contention is wholly unpersuasive. From the various findings, conclusions, orders, injunctions and other actions taken by this court in this case, two principles inter alia emerge with unmistakable clarity: (1) the State of Washington may not interfere in any way with treaty fishing, either by enforcement of any state statute or regulation, or by any other means, unless such action by the State is reasonable and necessary to prevent demonstrable harm to the actual conservation of fish; and (2) even where such conservation measures are necessary, the State must so establish to the satisfaction of all affected tribes or this court prior to taking any regulatory action.

The court has consistently so ruled on several different occasions, using slightly different language from time to time.

The first sentence of Conclusion of Law 23 is:

"23. The State's police power to regulate the off-reservation fishing activities of members of the treaty tribes exists only to the extent necessary to protect the fishery resource."

384 F.Supp. at 401 . The U.S. Supreme Court has also so ruled in Puyallup Tribe v. Washington Game Dept., 391 U.S. 392 , 88 S.Ct. 1725 , 20 L.Ed.2d 689 (1968), and in Washington v. Passenger Fishing Vessel Assn., 443 U.S. 658, 682 , 99 S.Ct. 3055, 3072 , 61 L.Ed.2d 823 (1979).

Paragraph 3 of this court's "Rulings on Major Issues in This Case" restates the limitation to conservation purposes, and adds the requirement that the State establish the conservation necessity before imposing any regulation:

"Every regulation of treaty right fishing must be strictly limited to specific measures which before becoming effective have been established by the state, either to the satisfaction of all affected tribes or upon hearing by or under direction of this court, to be reasonable and necessary to prevent demonstrable harm to the actual conservation of fish."

384 F.Supp. at 342 .

This was echoed by paragraph 21 of the Declaratory Judgment and Decree:

"21. If any person shows identification, as provided in the Decision of the Court, that he is exercising the fishing rights of a Treaty Tribe and if he is fishing in a usual and accustomed place, he is protected under federal law against any State action which affects the time, place, manner, purpose or volume of his harvest of anadromous fish, unless the State has previously established that such action is an appropriate exercise of its power."

384 F.Supp. at 408 .

The court warned the State and its officers of the consequences of unlawful regulation in paragraph 5 of the "Ruling on Major Issues," and used the occasion once again to spell out the limits of permissible regulation:

"5. The state having the burden of proof as above indicated, no regulation applied to off reservation treaty fishing can be valid or enforceable unless and until it has been shown reasonable and necessary to conservation as above defined. The arrest of, or seizure of property owned or in permitted custody of, a treaty right fisherman under a regulation not previously established to be reasonable and necessary for conservation, is unlawful and may be actionable as to any official or private person authorizing or committing such unlawful arrest or seizure."

384 F.Supp. at 342 .

Having defined repeatedly the limits of lawful regulation, the court then specifically *1439 enjoined Fisheries and other parties from violating those limits. The relevant portions of the "Injunction" provide:

"1. Defendants shall:

* * * * * *

c. conform their regulatory action and enforcement to each and all of the standards set forth in Final Decision # I;

* * * * * *

3. Defendants shall not interfere with or regulate or attempt to regulate the treaty right fishing of members of any treaty tribe during any period not covered by paragraph 2 above [not here relevant] as to such tribe unless the state first shows to the satisfaction of such tribe or this court that such regulation conforms to the requirements of Final Decision # I and this injunction.

* * * * * *

4. Except as otherwise provided in this injunction, defendants shall not enforce any state statute or regulation not conforming to the above against any individual fishing at his tribe's usual and accustomed fishing place who identifies himself by a tribal membership certification carried on his person.

* * * * * *

6. Except as otherwise provided in this injunction, defendants shall not apply or enforce any of the following statutes or regulations to regulate, limit or restrict the exercise of the fishing rights of a treaty tribe as declared in Final Decision # I: [list does not include R.C.W. 75.12.210]"

384 F.Supp. at 414-415 .

Nowhere does the court suggest that the list of statutes in paragraph 6 is intended to be exclusive. On every occasion the court states its prohibitions against regulation of treaty fishing in broad, general terms. The court says " every " regulation (not just those listed in paragraph 6) must have passed the test of conservation necessity before becoming effective (Rulings, paragraph 3). Turning the coin over, the court says "no" regulation shall be valid and enforceable unless and until it passes muster. (Rulings, paragraph 5). The injunction prohibits enforcement of " any " state statute or regulation not conforming to Final Decision # I—not just the statutes and regulations listed in paragraph 6.

In summary, there is no possible way to read this court's previous rulings in a manner which would permit Fisheries to enforce § .210 against the Makahs, absent a prior showing of conservation necessity.

RECOMMENDED ACTION

Despite all of the foregoing, the Attorney General of the State of Washington concluded that Fisheries had a free hand in enforcing § .210 against the Makahs, and advised Fisheries according. The frequency with which the court stated its prohibition of such regulation, and the unequivocal language the court used in doing so, raise some doubt as to whether Fisheries and the Attorney General reached this conclusion in good faith. But I recommend the court resolve those doubts in favor of Fisheries, and decline to hold the agency in contempt at this time, for several reasons.

First, the court can afford full protection and relief to the Makahs without holding Fisheries in contempt. Specific elements of recommended relief are discussed below.

Second, Fisheries sought and obtained the advice of their counsel before proceeding. This does not alter in any way the fact that the action taken by Fisheries, in reliance upon that erroneous advice, was directly contrary to this court's injunction and other orders. Nor does it deprive the Makahs of their right to full and vigorous enforcement of this court's orders. But these circumstances should temper the court's conclusion as to whether the action of Fisheries was contumacious, and should be punished as such.

Third, holding a party in contempt is a drastic sanction. The parties advise that, despite the extended and stormy history of *1440 this litigation, the court has never been required to hold the State, Fisheries or any other agency or official in contempt.

Finally, the court can hold the contempt sanction in reserve. If there ever was a genuine question as to whether Fisheries can interfere with Makah fishing in Mukkaw Bay, there is no question now, should the court adopt these recommended conclusions. The contempt sanction remains available in the event of any further improper interference.

While the court should decline to hold Fisheries in contempt at this time, it should grant the following specific relief:

(a) Order the Prosecutor to take steps immediately to dismiss the pending prosecutions, with prejudice;

(b) Order whichever respondents have custody of the Makahs' nets and related gear to return them immediately, if such has not already been accomplished;

(c) Specifically enjoin Fisheries and its officers and agents from further interference with set-net fishing by Makahs in Mukkaw Bay, except as such regulation is specifically permitted by the orders of this court; and

(d) Declare that this court's previous orders and injunctions limit all state regulation of treaty fishing, without regard to whether the state relies upon a statute or regulation listed in paragraph 6 of the Injunction.

The court should not award any compensatory or punitive damages at this time. The Makahs have requested such relief in their Civil Rights Act complaint, and the court can adjudicate them in due course in that case.

One aspect of this recommended relief requires further discussion. At least since Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), federal courts have been extremely reluctant to interfere in any way with criminal prosecutions pending in state court. At first blush, an order directing the Clallam County Prosecutor to dismiss the prosecutions with prejudice would appear to contravene this policy.

But in fact, such an order would represent no new incursion by this court into the domain of state officials. This court enjoined Fisheries from this type of interference with treaty fishing over seven years ago. For better or for worse, the court at that time enjoined state criminal prosecutions of the kind now challenged. Where, as here, the state initiates a prosecution in violation of that order, a reluctance by this court to act would deprive its prior orders of meaning, force and credibility.

Consideration of 28 U.S.C. § 2283 reinforces this conclusion. While generally prohibiting federal court injunctions staying state court proceedings, the statute preserves the court's power to do so where such an order is necessary "to protect or effectuate its judgments." Such is the case here.

POST-HEARING MOTIONS BY FISHERIES

The post-hearing motions by Fisheries should be denied. The reconsideration they seek can be achieved in the context of objections to this Report and Recommendation. As to further testimony, they have made no showing as to what the testimony would be, what relevance it might have, or why it was not available on the return date on the Order to Show Cause. Finally, the court should decline to give a "clarification" as to the validity of the federal regulations governing net fishing for salmon in the Fishery Conservation Zone. As discussed above, this dispute involves neither the federal regulations nor the Fishery Conservation Zone. There is no evidence the Makahs engage in set-net fishing more than three miles from shore; and if there are other fishermen who do, they are not before the court in this proceeding. This is therefore not an appropriate setting for issuing what would be an advisory opinion.

CONCLUSION

The court should deny the motion to hold Fisheries in contempt, but should grant relief in the four respects described above.

*1441 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: DETERMINATION OF ADDITIONAL USUAL AND ACCUSTOMED FISHING PLACES OF NISQUALLY, PUYALLUP, AND SQUAXIN ISLAND INDIAN TRIBES

(August 22, 1981)

CRAIG, District Judge.

The court, having reviewed the Requests for Determination of additional treaty fishing places for the Nisqually, Puyallup, and Squaxin Island Indian Tribes, respectively, and the Magistrate's hearing and reports thereon, makes the following Supplemental Findings of Fact and Conclusions of Law:

SUPPLEMENTAL FINDINGS OF FACT

335. At the time of the Treaty of Medicine Creek, 10 Stat. 1132 , the Nisqually Indian Tribe and its members regularly fished in the following described areas:

All saltwater areas of southern Puget Sound from the northernmost tip of the area generally known as Henderson Bay south to the Nisqually River bay area to a line drawn from Johnson Point to Devils Head; from a line drawn east from Point Fosdick on Kitsap Peninsula to Day's Island south to the Nisqually River bay area (to a line drawn from Johnson Point to Devils Head); and all waters between Henderson Bay and the Narrows (to a line drawn from Point Fosdick to Day's Island) including Carr Inlet and Hale Passage; as well as the freshwater rivers and streams which drain into that area.

336. At the time of the Treaty of Medicine Creek, 10 Stat. 1132 , the Puyallup Indian Tribe and its members regularly fished in the following described areas:

1. Those salt waters north and west of a line drawn from Mahnckes Point on the Kitsap peninsula to the westernmost point of McNeil Island bordering on Pitt Passage, then extending from Hyde Point on McNeil Island to Gibson Point on Fox Island and then extending from Fox Point on Fox Island to Point Fosdick on the Kitsap peninsula, generally known as the Carr Inlet/Henderson Bay/Hale Passage area; as well as the freshwater rivers and streams which drain into that area;

2. Those salt waters north and east of a line drawn from Hyde Point on McNeil Island to Gordon Point on the mainland and south of those marine areas already adjudicated to be usual and accustomed fishing grounds and stations of the Puyallup Tribe in this case at 384 F.Supp. 312 , 371, Finding of Fact # 99 ["* * * the marine areas around Vashon Island and adjacent portions of Puget Sound * * *"] generally known as the Narrows area.

337. At the time of the Treaty of Medicine Creek, 10 Stat. 1132 , the Squaxin Island Indian Tribe and its members regularly fished in the following described areas:

1. Those salt waters north and west of a line drawn from Mahnckes Point on the Kitsap peninsula to the westernmost point of McNeil Island bordering on Pitt Passage, then extending from Hyde Point on McNeil Island to Gibson Point on Fox Island and then extending from Fox Point on Fox Island to Point Fosdick on the Kitsap peninsula, generally known as the Carr Inlet/Henderson Bay/Hale Passage area; as well as the freshwater rivers and streams which drain into that area;

2. Those salt waters north and east of a line drawn from Hyde Point on McNeil Island to Gordon Point on the mainland and south of the Tacoma Narrows Bridge.

338. The three foregoing Findings of Fact are made on the basis of a modification of the applicant tribes' original Request for Determination of additional treaty fishing areas in southern Puget Sound and are not intended to infer that areas not included in the Findings are not usual and accustomed fishing places of any of these tribes.

*1442 CONCLUSIONS OF LAW

87. In addition to the areas previously determined by this court to be usual and accustomed fishing places of the Nisqually, Puyallup, or Squaxin Island Indian Tribes within which the fishing rights secured to those tribes by Article 3 of the Treaty of Medicine Creek may be exercised, the areas described in Findings of Fact Nos. 335, 336, and 337 are among the usual and accustomed fishing grounds and stations of the plaintiff Nisqually, Puyallup, and Squaxin Island Indian Tribes, respectively, and within which those tribes may respectively exercise their treaty-secured fishing rights. The orders and decrees of this court with respect to the protection and exercise of the treaty-secured fishing rights of those tribes apply with respect to tribal fishing within those areas.

88. This determination of additional usual and accustomed fishing grounds and stations shall in no way limit these or any other parties from seeking further determination of other usual and accustomed fishing grounds and stations including any other areas embraced within the Requests for Determination as originally filed in 1980.

This Order consolidates and replaces the two orders of July 24, 1981, on this subject which are hereby withdrawn.

CORRECTED ORDER RE: REQUEST FOR DETERMINATION OF PORT GAMBLE AND LOWER ELWHA USUAL AND ACCUSTOMED FISHING PLACES

(October 23, 1981, as amended March 8, 1983 and May 24, 1983)

CRAIG, District Judge.

Based on all the pleadings, testimony, evidence, memoranda and oral arguments submitted on the Requests for determination of the Lower Elwha and Port Gamble Bands of Klallam Indians regarding their usual and accustomed fishing places, this court makes the following Findings of Fact:

339. The present day Lower Elwha and Port Gamble Bands of Klallam Indians are descendents of the Klallam groups who, at treaty times, shared a common language and a common culture and inhabited a dozen or more villages along the northern shore of the Olympic Peninsula. The Port Gamble Indian community was established about 1853, when Klallams moved to the area because of employment opportunities. The Klallams who settled at Port Gamble continued to fish the waters of the Strait of Juan de Fuca and the streams draining into the Strait that were associated with their original homes, as well as the waters of Port Townsend, Port Ludlow, Port Gamble and adjacent marine areas.

340. At treaty times, the Klallams regularly visited Hood Canal for fishing, shell-fish digging and berry picking. In addition, Klallams regularly fished the waters of northern Puget Sound around the San Juan Islands and Whidbey Island, and in the Haro and Rosario Straits.

341. The usual and accustomed fishing grounds of the Port Gamble Band of Klallam Indians include the waters of the Strait of Juan de Fuca, and all the streams draining into the Strait from the Hoko River east to the mouth of Hood Canal. In addition, the Port Gamble Klallam Band has usual and accustomed fishing rights on the Sekiu River, but the fishing on this river shall be subject to the control and regulation of the Makah Indian Tribe. Furthermore, the usual and accustomed fishing grounds of the Port Gamble Klallam Band include the waters of the San Juan Islands archipelago and the waters off the west coast of Whidbey Island. The usual and accustomed fishing grounds of the Port Gamble Klallam Band also include Hood Canal and all streams draining into Hood Canal except the Skokomish River and all of its tributaries. The usual and accustomed fishing area of the Port Gamble Klallam Band is presented graphically in the map attached as Appendix A. [13]

*1443 342. The usual and accustomed fishing grounds of the Lower Elwha Band of Klallam Indians include, in addition to those determined in the Order of April 18, 1975, 459 F.Supp. at 1049 , and the Order of March 10, 1976, 459 F.Supp. at 1066 , the waters of the San Juan Islands archipelago, the waters off the west coast of Whidbey Island, Hood Canal and all streams draining into Hood Canal except the Skokomish River and all of its tributaries. The usual and accustomed fishing area of the Lower Elwha Band is presented graphically in the map attached as Appendix A (omitted here, see fn. 13, supra ).

This determination shall not preclude these or any other parties from seeking future determination, pursuant to subparagraph 25(f) of the Injunction of March 22, 1974 ( 384 F.Supp. 312 , 419), of additional usual and accustomed fishing grounds and stations not affected by the Hood Canal Agreement, p. 1468 infra.

PHASE II ATTORNEY FEES MEMORANDUM OPINION AND ORDER

(December 15, 1981)

ORRICK, District Judge.

Attorneys from six different legal service organizations and law firms, representing a total of twenty-three Indian tribes who have intervened in this action for declaratory and injunctive relief, have filed petitions and affidavits seeking fees and costs in excess of $450,000 for services rendered to date in Phase II of this litigation. Counsel for the intervening tribes also request that this "lodestar" figure be augmented by a multiplier based on the contingent circumstances under which the services were rendered and the quality of the services.

An award of attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (the "Act"), is appropriate because the intervening tribes have succeeded in establishing rights secured by federal law in an action that is based in part on claims involving constitutionally-secured rights. However, fees will not be awarded at this time for services rendered on issues on which the intervening tribes cannot yet be said to have prevailed. While this Memorandum Opinion sets forth the Court's findings with respect to the appropriateness of an award and the rate at which fees should be set for particular attorneys, the exact amount of the fees to be awarded cannot be calculated until counsel file supplemental affidavits indicating the hours spent on the issues on which intervenors have not prevailed at this time, namely, whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, is warranted.

I

This complex case was commenced in 1970 by the United States on its own behalf and as trustee of seven Indian tribes to settle several disputed issues concerning the nature and scope of the Indian tribes' treaty-based fishing rights. The seven Indian tribes subsequently intervened in the action along with other tribes. The case has been litigated in two phases. Phase I culminated in a 1979 Supreme Court opinion which conclusively established the tribes' treaty-based right to a specific allocation of salmon and steelhead trout in the geographic area encompassed in this litigation. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685-89 , 99 S.Ct. 3055, 3074-76 , 61 L.Ed.2d 823 (1979). Phase II, the subject of these applications for fees and costs, involved consideration of two issues reserved by the Phase I court, specifically: (1) whether hatchery-bred fish are included in the allocable fish population, and (2) whether the right of taking fish incorporates the right to have treaty fish protected from environmental degradation. In its Opinion filed September 26, 1980, this Court granted the plaintiffs' motions for partial summary judgment, finding that hatchery-bred fish were to be included in the allocation and that the fishing right did include the right to have treaty fish protected *1444 from environmental degradation. The Opinion specifically did not reach the questions whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, may be warranted. United States v. Washington, 506 F.Supp. 187, 202 (1980). Although this Court entered judgment on the motions for partial summary judgment, [14] these questions remain for future resolution.

On May 8, 1981, Judge Craig awarded attorneys' fees to counsel for the intervening tribes pursuant to 42 U.S.C. § 1988 for services rendered in Phase I of this litigation. Counsel for the intervening tribes now seek fees and costs for services provided in Phase II of this litigation and seek a declaration that they will be entitled to additional fees for any subsequent services rendered in enforcing the Phase II decision or in defending it on appeal.

II

Although the traditional rule in American courts has been to require each party to bear his own costs and attorneys' fees, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 , 95 S.Ct. 1612, 1616 , 44 L.Ed.2d 141 (1975), Congress altered this rule in cases involving the vindication of civil rights by passing the Act. By its terms, the Act authorizes the payment of reasonable attorneys' fees in suits to enforce the provisions of 42 U.S.C. § 1983 , and subsequent decisions have made it clear that such awards to prevailing parties are to be the norm rather than the exception. E.g., Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir.1979).

Neither the United States nor the intervening tribes specifically alleged in their pleadings in Phases I and II of this action that they were seeking relief for deprivation of rights secured by laws of the United States as provided by § 1983, or alleged jurisdiction under its statutory authority. 28 U.S.C. § 1343 . Judge Boldt nevertheless concluded that jurisdiction over the allocation issue in Phase I under § 1343(3) and (4) was established by plaintiffs' allegations, United States v. Washington, 384 F.Supp. 312, 399 (W.D.Wash.1974) (conclusion of law 1c), and Judge Craig interpreted Judge Boldt's specific conclusions concerning violations of due process and discrimination as a determination of claims under § 1983. See Order of Judge Craig filed May 8, 1981. This Court also recognized the discriminatory nature of the violations found in Phase I of these proceedings United States v. Washington, supra, 506 F.Supp. 187 , 192 & n. 18, 204 & n. 66. It is clearly the law of this case that Phase I considered claims for relief from deprivation of constitutionally-secured rights under § 1983 which were brought before the court within the jurisdiction established by 28 U.S.C. § 1343 .

Although Phase II involves issues reserved by the Phase I court, it is not a different lawsuit. The constitutional nature and jurisdictional basis of the claims raised in Phase I remain an element of the proceedings in Phase II of this case. See Richmond v. Weiner, 353 F.2d 41, 44 (9th Cir.1965) (holding that the district court continued to exercise jurisdiction over a nonfederal claim following bifurcation of the claim from federal issues). The Supreme Court has recently recognized that Congress intended to authorize the award of attorneys' fees in cases in which a plaintiff prevails on a claim for which fees ordinarily could not be awarded under § 1988 if that claim were pendent to a substantial constitutional claim, and that this legislative action did not violate the Eleventh Amendment when such awards were sought against a state defendant. Maher v. Gagne, 448 U.S. 122 , 132 and n. 15, 100 S.Ct. 2570 , 2576 and n. 15, 65 L.Ed.2d 653 (1980). There can be no doubt of the substantial nature of the constitutional claims in Phase I in light of Judge Boldt's findings in favor of plaintiffs. Viewing the claims in Phase II as pendent to the constitutionally-based claims of Phase I, it is apparent *1445 that Phase II is an appropriate case for considering requests for attorneys' fees authorized by 42 U.S.C. § 1988 .

Wholly apart from this pendency theory, an award of attorneys' fees under § 1988 is appropriate in this action because the claims considered by this Court in Phase II are cognizable in their own right as § 1983 claims. State officials acting in their official capacities are among the defendants alleged to have violated the rights of the intervening tribes. They are "persons" within the meaning of § 1983 against whom attorneys' fees may be awarded. Hutto v. Finney, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1978). The actions allegedly undertaken by defendants that violated the rights of the intervening tribes were alleged to have been performed "under color of state law" in the form of regulations removing hatchery-reared fish from the share of intervening tribes and the issuance of permits for activities that damaged tribal fisheries. [15] The rights claimed by the intervening tribes and declared by this Court are found in treaties ratified by the Congress [16] and hence must be viewed as rights secured by "laws" of the United States. See C. Antieau, Federal Civil Rights Acts § 207 (1980). Thus, while neither the United States nor the intervening tribes pleaded these claims specifically under § 1983, [17] the allegations satisfy the requirements for pleading claims of deprivation of statutorily-secured rights under § 1983. Because attorneys' fees awards under § 1988 are not limited only to § 1983 claims based on violations of civil rights or equal protection laws but are applicable to all statutorily-based § 1983 claims heard by a court with jurisdiction over the claims, Maine v. Thiboutot, 448 U.S. 1 , 100 S.Ct. 2502 , 65 L.Ed.2d 555 (1980); Maher, supra, 448 U.S. at 128, 100 S.Ct. at 2574 , the applications of tribal counsel for fees in Phase II are appropriately presented.

Under either of these theories, it is clear that the intervening tribes "prevailed" within the meaning of § 1988 at least with respect to the issues on which partial summary judgment was entered. While several issues remain to be tried concerning violations of the tribes' environmental right and the potential remedies that may be applied, the Supreme Court has recently noted that "[n]othing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated." Id. Both the Supreme Court and Congress have recognized that an interlocutory award of fees may be appropriate following an order that determines substantial rights of the parties. See Hanrahan v. Hampton, 446 U.S. 754, 757 , 100 S.Ct. 1987, 1989 , 64 L.Ed.2d 670 (1980). Here, substantial rights to a valuable resource, hatchery-bred fish, and to the protection of a valuable natural resource, the fisheries, have been declared to exist in the intervening tribes.

Because the claims before this Court in Phase II come within the provisions for attorneys' fees under § 1988 either under a theory of pendency to constitutionally-based claims in Phase I or as statutorily-based § 1983 claims in their own right, and because the intervening tribes prevailed with respect to those aspects of the claims which have been presented to the Court thus far, reasonable attorneys' fees and costs will be awarded to tribal counsel.

III

Section 1988 provides for the payment of a "reasonable attorney's fee as part of the *1446 costs." In determining what is a reasonable fee for the services rendered by tribal counsel in this action, the Court will apply the standards of review listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951 , 96 S.Ct. 1726 , 48 L.Ed.2d 195 (1976), within the framework first delineated in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973).

The initial step under both the Kerr and Lindy approaches is to calculate the time and labor required by the litigation. The Court has carefully scrutinized the time records supplied by counsel for instances of duplicative effort, see, e.g., In re Equity Funding Corp. of America Securities Litigation, 438 F.Supp. 1303, 1328 (C.D.Cal. 1977), and vagueness or inaccuracy in recordkeeping, e.g., Lockheed Minority Solidarity Coalition v. Lockheed Missiles & Space Co., 406 F.Supp. 828, 831 (N.D.Cal. 1976). With the possible exception of a number of hours expended in research and drafting of the briefs concerning attorneys' fees, the Court's examination has revealed no significant evidence of duplication. The tribal counsel's services have been ably coordinated by lead counsel. The division of services among counsel most active in the case, [18] while not formal, constituted an efficient use of their time. Although the interaction between tribal counsel and counsel for the United States has not been detailed in these applications, it is apparent that the United States relied extensively on the discovery efforts of tribal counsel, [19] and that tribal counsel coordinated their efforts with those of the attorneys for the United States. [20] Participation by attorneys for individual tribes in this action was largely limited to work on discovery that pertained to the unique circumstances and interests of their particular clients and did not duplicate the efforts of lead counsel who represented the general interests of the tribes as a whole. Tribal counsel's affidavits and time records also indicate that counsel maintained contemporaneous time records. In limited instances in which hours requested were reconstructed, the sources used were reliable, the services performed were reasonably detailed, and the hours requested appear to have been conservatively estimated. Such reconstructions are a proper basis for awarding fees. Detroit v. Grinnell Corp., 560 F.2d 1093 , 1102-03 (2d Cir.1977).

The Court has also examined the fee applications for evidence of unnecessary expenditures of services by tribal counsel. Notwithstanding defendants' generalized allegations of such expenditures, the Court has found no specific instances in the time records submitted of work that was not reasonably undertaken by the tribal counsel. While tribal counsel are seeking compensation for a great many hours of work, the time requested must be assessed against another Kerr factor, the difficulty of the questions involved in Phase II. Copeland v. Marshall, 641 F.2d 880, 890 (D.C.Cir.1980). In this case, the hatchery issue was characterized by highly technical factual development, while defendants themselves have recognized the novelty of the environmental rights issue raised by plaintiffs. [21] In light of the difficulty of these issues, the number of hours requested is not, on its face, excessive.

There is, however, one category of services that should not be included in an award of services at this time. The Court *1447 has yet to consider two issues expressly reserved from the partial summary judgment proceedings, namely, whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, may be warranted. While the intervening tribes may be considered "prevailing parties" for attorney's fees purposes if they "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit," the amount of fees received should be based on the work performed on issues on which they were successful. Sethy, supra, 602 F.2d at 897-98 . See also Copeland, supra, 641 F.2d at 891 -92 & n. 18; Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978). Because litigation of this case is not yet concluded, it is not analogous to cases in which fees have been awarded for services performed on issues that were necessarily prepared but not ultimately reached. See, e.g., Seattle School District No. 1 v. Washington, 633 F.2d 1338, 1349 (9th Cir.1980). Further proceedings in this action may result in a determination against the intervening tribes on the remaining issues. Alternatively, should the plaintiffs obtain a favorable settlement or succeed in litigating the issues, there will be ample time to consider requests for fees at that time.

Since the issues of environmental degradation and potential remedies have not yet been determined, the Court cannot award fees and costs expended exclusively or in large part on those issues. It appears from the affidavits and time records submitted that applicants for fees are seeking compensation for time expended on these issues, particularly on the question of environmental degradation. [22] New affidavits must therefore be filed with the Court showing separately the hours that were expended on these undecided issues.

The second step of the Lindy formula for calculating the "lodestar" figure is to determine the reasonable hourly rate at which counsel should be compensated. In determining this rate for each attorney seeking compensation here, the Court has considered not only the obvious Kerr factor of "the customary fee in the community for similar work," but also the level of skill necessary to perform the services, whether the fee is fixed or contingent, time limitations imposed by the circumstances of the case or by the client, the reputation of the attorneys, and the undesirability of the case. See Copeland, supra, 641 F.2d at 890 . The Court has also scrutinized the various types of tasks performed by individual counsel to ensure that counsel properly allocated difficult tasks to more experienced, and hence, more highly paid, counsel. With one exception, [23] the Court has not attempted to break down the hours spent by the types of tasks performed in order to award the same attorney different rates for different tasks. See In re Equity Funding Corp. of America Securities Litigation, 438 F.Supp. 1303, 1330 (C.D.Cal. 1977) (recognizing the impossibility of such a task in complex litigation).

The Court does not consider the status of some tribal counsel as salaried legal services attorneys or the fact that any fees awarded will be paid from the public treasury to be relevant to a determination of a reasonable rate of compensation in this case. The Ninth Circuit has clearly *1448 rejected past suggestions that fees awarded to legal services organizations should be less than those customarily paid private counsel in civil rights cases. See Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir.1980). Consideration of the source of the fees is not listed among the relevant factors in Kerr , and appears inconsistent with the factor of "fees customarily paid in the community for like services." Nor does the Court consider the amount of fees already paid to counsel by their clients to be an absolute limit on the rate at which they may be compensated pursuant to § 1988. While the rate charged by counsel offers some indication of the value they placed on their own services in the absence of special circumstances, the Court is free to set a rate equivalent to that charged in other complex federal litigation if it determines that such a rate is justified after considering all the factors for setting the rate of compensation. See Keyes v. School District No. 1, Denver, Colorado, 439 F.Supp. 393, 415 (D.Colo.1977) (setting rate at $35 per hour notwithstanding agreed-upon rate between counsel and client of $30 per hour). Finally, in setting the rate of compensation, the Court will use rates currently paid as a means of compensating for the serious decline in the value of the dollar due to inflation during the pendency of Phase II.

In addition to the basic "lodestar" of reasonable hours multiplied by an appropriate rate of compensation in today's dollars, tribal counsel have also sought a multiplier based on the contingent nature of success in this litigation and the quality of their representation. In considering the proposed contingency adjustment, the Court notes that it "is designed solely to compensate for the possibility at the outset that the litigation would be unsuccessful and that no fees would be obtained." Copeland, supra, 641 F.2d at 893 . Factors appropriately considered in making an adjustment for contingency are the difficulty of the plaintiff's burden, the risks assumed in developing the case (including the number of hours risked and the out-of-pocket expenses advanced), and the delay in receipt of payment. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 117 (3d Cir. 1976). Because the Court has already considered the necessary level of skill and the degree to which services were rendered on a contingency basis in setting the reasonable hourly rate, a further adjustment based on these factors would be duplicative. Copeland, supra, 641 F.2d at 893 . Similarly, because the lodestar figure will be calculated to reflect present hourly rates, no further adjustment should be made at this stage for delay in the receipt of payment. Id. at 893 n. 23. For these reasons, no multiplier will be awarded to reflect the contingent nature of success in this litigation.

Because the quality of tribal counsel's work in general is a component of the reasonable hourly rate, the Court considers tribal counsel's request for a multiplier based on quality of services to be in the nature of a bonus based on a determination that "the lawyer discharged the professional burden undertaken with a degree of skill above * * * that expected for lawyers of the caliber reflected in the hourly rates." Lindy Bros., supra, 540 F.2d at 118 . In considering whether to award this "bonus," the Court has examined the benefit conferred on the intervening tribes as well as the quality of the professional methods utilized by tribal counsel in efficiently litigating this action. The Court recognizes that tribal counsel have obtained important and tangible benefits for their clients in the form of the rights declared to exist by this Court and that this result was obtained through motions for summary judgment rather than a full trial. The Court also recognizes, however, that obtaining these results required a great many hours of work, particularly when the additional hours of services by counsel for the United States are considered. [24] This, coupled with *1449 the fact that the rates of compensation for tribal counsel already reflect a high level of skill and sophistication in the specialized area of Indian rights, makes an adjustment based on exceptional quality inappropriate in this award of attorneys' fees.

The Court turns now to the task of fixing a reasonable hourly rate at which individual applicants should be compensated and to note any duplicative hours for which fees will not be awarded.

A. Evergreen Legal Services.

Evergreen Legal Services is a publicly funded legal services organization which represented sixteen treaty tribes in Phase II. [25] Four staff attorneys employed by Evergreen during the course of the Phase II proceedings have filed applications for fees with the Court.

Mr. Alan Stay has recorded the largest number of hours spent on this litigation. In addition to functioning as the primary representative of Evergreen's tribal clients in this litigation, a task which itself involved substantial skills in coordinating and harmonizing the divergent interests of the different tribes, Mr. Stay was selected by tribal counsel to serve as coordinating counsel for all the plaintiff tribes in this litigation and has carried out that central role since 1976. In this role, Mr. Stay was responsible for liaison with the United States and defendants, for developing tribal positions and presenting them to the Court, and for ensuring that all material directed to specific tribes was completed and filed with the Court. While hours claimed by Mr. Stay for 1975-76 have been reconstructed and are set forth in summary fashion, the sources used and the number of hours claimed in light of the tasks performed indicates that the reconstruction was conservative. Other hours are based on daily records.

In calculating the hourly rate at which Mr. Stay should be compensated, the Court has noted that Mr. Stay has worked exclusively in the area of Indian law for eight of the ten years since he graduated from law school, and has acquired special expertise in Indian treaty law and in the facts of this case by his representation of the same sixteen tribes in Phase I of this litigation. Numerous affidavits filed on behalf of Mr. Stay attest to the reputation which he and Evergreen Legal Services enjoy in the field of Indian treaty rights. [26] Mr. Stay's active role during the discovery phase of this case demonstrated substantial experience as a litigator in cases involving complex facts, and his role as coordinating counsel amply demonstrated his unusual administrative skills. In view of this necessary experience, the degree of uncertainty that existed with respect to both rights declared in this action, the preclusive effect of the many hours expended by Mr. Stay in this litigation, and the rate normally paid in the Seattle community for litigation of this complexity, the Court finds that $105 per hour is an appropriate rate of compensation for Mr. Stay's services, with the exception of those hours expended in travel. Seventy-nine hours of travel time will be compensated at the rate of $40 per hour.

Mr. Phillip Katzen has filed two affidavits seeking compensation for 256 hours of work since 1978 in assisting in the preparation of briefs and discovery materials on behalf of the individual tribes represented by Evergreen. In light of the large number of tribal clients and the diverse interests of the clients, Mr. Katzen's supporting role in this litigation appears to have been a necessary supplement to the efforts of Mr. Stay. Mr. Katzen was admitted to practice in the State of Washington in late 1977 and has worked in the area of Indian treaty rights as an attorney since 1978. In light of the prevailing rate paid in Mr. *1450 Katzen's community for the services of an attorney with three years' experience in federal litigation, the Court finds that $70 per hour is an appropriate rate of compensation for Mr. Katzen's services, with the exception of 4 hours of travel time, which will be compensated at $40 per hour.

Mr. Thomas P. Schlosser seeks compensation for a total of 285 hours of work for Evergreen between 1976 and early 1979, when he left Evergreen to join the law firm of Ziontz, Pirtle, Morisset, Ernstoff & Chestnut. Mr. Schlosser supplemented the work of other Evergreen counsel by performing extensive client counseling, and played an important role in ascertaining and reconciling differing tribal positions to formulate a single plaintiffs' perspective, an important factor in the streamlining of this litigation. Mr. Schlosser appears to have carefully eliminated services in other aspects of this litigation from his application, and has not requested hours for time spent in travel. He has worked on behalf of the tribal clients in this case since his admission to the Washington Bar in 1975 and appeared extensively on behalf of the tribes in hearings in Phase I of this action. The Court finds that $75 per hour is an appropriate rate of compensation for Mr. Schlosser's services during his employment with Evergreen.

Ms. Cynthia Davenport seeks compensation for 65 hours of work between 1977 and 1981, chiefly for assisting in the preparation of discovery responses by two of the tribes represented by Evergreen. The Court notes that this type of work did not require the degree of skill and familiarity with Indian rights or environmental law that was necessary to plan and draft pleadings and briefs for this litigation. Ms. Davenport's affidavit does not provide the Court with any other indication of specialized skill or expertise. On the basis of her affidavit and the degree of expertise required by the tasks she performed, the Court finds that $65 per hour is an appropriate rate of compensation for Ms. Davenport's services.

B. Ziontz, Pirtle, Morisset, Ernstoff & Chestnut.

The Ziontz firm has represented four Indian tribes during the pendency of this litigation. [27] Mr. Steven Anderson has also assumed a major role in coordinating the efforts of all tribal counsel, particularly in researching, drafting, and reviewing written pleadings in Phase II since 1978, and in participating in the strategy and guidance of Phase II along with Mr. Stay. The 1,044 hours sought by Mr. Anderson, reflect careful daily record-keeping, and the time sheets demonstrate a conservative allocation of services to this phase of the litigation where issues in other phases were also involved. While working closely with Mr. Stay, Mr. Anderson's services were not duplicative of the large number of hours requested by Mr. Stay since Mr. Anderson concentrated on the drafting of written pleadings while Mr. Stay managed discovery and took an overall hand in coordinating the activities of counsel.

Mr. Anderson was admitted to the Washington Bar in 1971, and has focused primarily on Indian law since joining the Ziontz firm in 1974. Mr. Anderson has had substantial experience in preparing briefs in appellate matters both in Phase I of this litigation and in other Indian law cases since 1974, and has submitted a number of affidavits from other practitioners and scholars in the field of Indian environmental law which attest to his high standing in these specialized areas of practice. [28] Several factors mitigate against an award equal to that of Mr. Stay. Mr. Anderson came to Phase II of this litigation several years after Mr. Stay and did not exercise as prominent a role in the coordination of the litigation as did Mr. Stay and while the possibility of success on the merits was no greater for Mr. Anderson than for Mr. Stay, the Ziontz firm did receive regular payments from their clients and so did not *1451 experience the same degree of risk as Evergreen, which was entirely dependent for payment on an award of attorneys' fees. For these reasons, the Court finds that $95 per hour is an appropriate rate of compensation for Mr. Anderson's services.

Two senior partners in the Ziontz firm, Messrs. Mason Morisset and Alvin Ziontz, request compensation for a total of 229 hours for services rendered primarily in 1975-77. While Mr. Morisset continued to participate in this litigation after Mr. Anderson became the primary counsel from the Ziontz firm, his contributions do not appear from the time sheets to have duplicated those of Mr. Anderson, but instead appear to represent a carryover from his extensive work in Phase I of this litigation. Both Messrs. Ziontz and Morisset have practiced extensively in the area of Indian rights since 1970. In light of this experience, tempered by the other factors described with respect to Mr. Anderson, the Court finds that $95 per hour is an appropriate rate of compensation for the services of Messrs. Ziontz and Morisset, with the exception of 24 hours of travel time, which will be compensated at $40 per hour.

Mr. Thomas Schlosser has also submitted two affidavits seeking a total of 40 hours for services performed that primarily relate to the application for attorneys' fees. While a limited number of these hours involved legal research on applicable factors in calculating fees (approximately 11 hours), the majority of the hours for which compensation is sought were expended in calculating time sheets and reviewing the affidavits of other tribal counsel. In light of the lesser degree of skill necessary to perform these tasks, and the small amount of time that Mr. Schlosser was required to devote to this case, the Court finds that notwithstanding his greater experience as a litigator during the years in which he has been employed by Ziontz, the $75 hourly rate at which he will be compensated for his work while with Evergreen Legal Services is an appropriate rate of compensation for his services.

The above rates are commensurate with the prevailing rate for work of similar complexity by attorneys with similar experience and expertise. While the Ziontz firm has entered into contracts with its tribal clients for compensation at lower hourly rates than the rates set above, the Court notes that the agreements between the Ziontz firm and the tribes are subject to approval of the federal government and that this artificial restriction does not accurately reflect the normal rate of compensation in the market for similar legal services in Seattle. The Court will, therefore, award the higher rates. The Ziontz firm will be required to refund the sums already received from their tribal clients.

C. Native American Rights Fund.

Four attorneys who were or are employed by the Native American Rights Fund, a legal services organization that represents five intervening tribes in Phase II, have applied for a total of 373 hours. The hours were principally expended in 1975-76 in the early stages of Phase II when Fund counsel functioned as co-lead counsel for the intervening tribes. Fund counsel were the first to raise the environmental issue reached by this Court, while serving as lead counsel in Phase I of this litigation, and so played an appropriate role in initially defining the issues to be litigated and strategy to be followed in Phase II. In September 1976, primary responsibility for representing the tribal interests shifted to local counsel in Seattle.

The largest number of hours requested were expended by Mr. Bruce Greene, who claims 192 hours while serving as lead counsel or co-lead counsel for the intervening tribes in Phase II from June 1975 to September 1976. Working with Mr. Greene was Mr. David Getches, who served as lead counsel in Phase I of this litigation through 1975 and who expended 82 hours in Phase II. While the breakdown in the responsibilities is not distinct in the time records supplied, it was appropriate that Mr. Getches continued to play a role in refining the environmental issues that he *1452 had first raised in Phase I. With the exception of two trips to Seattle at the outset of the Phase II litigation, Mr. Getches did not accompany Mr. Greene to meetings with other counsel. There is no other evidence of duplication in their time records. Both Messrs. Getches and Greene had over five years of experience in Indian rights litigation when they took on their responsibilities in Phase II. Mr. Getches had the additional advantage of extensive work in the facts of this case in his role as lead counsel in Phase I. While the hours requested were not so extensive as to preclude other representation, services were performed on a contingency basis with as great a risk of failure on the merits as that of other tribal counsel. The Court must also consider that the fee for services in complex federal litigation in Boulder, Colorado, is undoubtedly lower than fees charged in Seattle, particularly in the absence of documentation to the contrary. On the basis of all these factors, the Court finds that $90 per hour is a reasonable rate of compensation for the services of Messrs. Getches and Greene, with the exception of 24 hours of travel time which will be compensated at the rate of $40 per hour.

Mr. Robert Pelcyger seeks compensation for 31 hours expended in coordinating the limited involvement of the Fund after 1977 in this litigation and in preparing the Fund's application for fees. While Mr. Pelcyger is as experienced as both Messrs. Getches and Greene in litigating Indian rights, the relatively routine types of work for which hours have been claimed did not require this level of expertise. The Court finds that $80 per hour is an appropriate rate of compensation for Mr. Pelcyger's services.

Finally, the Fund seeks compensation for 68 hours expended by Stephen Rios in researching several legal issues in the fall of 1975. Sixteen hours claimed for travel to and attendance at a meeting of Phase II counsel will not be compensated because Mr. Greene also attended this meeting and could easily have presented the issues on which Mr. Rios worked. Mr. Rios completed law school six months prior to performing this research. An appropriate rate for an attorney with this degree of experience in the Boulder community is $55 per hour.

The Fund also seeks compensation for travel expenses of $1,768.73. For the same reason that it subtracted hours from Mr. Rio's application, the Court also deducts the cost of his trip to Seattle, which it estimates at $200. The Fund will, therefore, receive $1,568.73 in expenses.

D. Daniel Raas.

Mr. Daniel Raas is the Reservation Attorney for the Lummi Indian Tribe and has acted as local counsel for the Tribe in Phase II. Mr. Raas claims a total of 188.5 hours of time expended in Phase II, principally in responding to discovery requests and in preparing memoranda and applications for attorneys' fees. While the Court is unable to distinguish hours spent on the issue of environmental degradation in the time sheets presented by Mr. Raas, it appears that at least some of his discovery efforts may have been related to this issue. It is clear to the Court that unlike other applicants for fees, Mr. Raas has not carefully distinguished hours expended in Phase I from the services he rendered in Phase II, particularly with respect to his work on attorneys' fees. Instead of crediting hours spent in research to the specific phase in which he was working at the time, Mr. Raas has simply divided his work on attorneys' fees between Phase I and Phase II. While some of this research was doubtless beneficial to Phase II, the Court cannot award fees on the basis of so inexact a measurement of hours expended. Moreover, the hours expended by Mr. Raas in preparing his memorandum on attorneys' fees appear to duplicate the efforts of the Ziontz attorneys, who took the lead in preparing these applications. At best, the division of tasks with respect to legal research on attorneys' fees was inefficient. For this reason, the Court will not award fees to Mr. Raas for work spent relating to attorneys' fees other than the hours expended in justifying his own fee. Consequently, 56 hours will not be compensated.

*1453 In setting an appropriate rate for Mr. Raas' services, the Court notes that he has practiced in the area of Indian rights since 1973, and has served as the Lummi Reservation Attorney for the past four years. While this experience undoubtedly assisted Mr. Raas in efficiently preparing the discovery regarding his tribal client, the nature of his services did not demand as sophisticated a background in Indian treaty rights and environmental law as did the work of lead counsel for the tribes. These services did not preclude other work by Mr. Raas, and he appears to have received unspecified amounts of compensation for his work, thereby lessening the degree of risk involved in undertaking this litigation. In light of these considerations, the Court finds that $75 per hours is an appropriate rate of compensation for Mr. Raas's services.

E. Peter Wilke.

Mr. Peter Wilke served as counsel for the Swinomish Indian Tribal Community in this litigation, and seeks compensation for a total of 145 hours of services to the Tribe in Phase II. The majority of these hours were expended in document review and advising the client as to the course of the litigation, or on discovery matters. Only a small amount (15 percent) of the hours claimed is said to have involved substantive strategizing or discussion of issues with lead counsel. Unlike other counsel, Mr. Wilke has not broken down his hours into daily segments but has provided only a monthly synopsis of vaguely described tasks. This presentation of time does not allow the Court to accurately assess Mr. Wilke's services for duplication or efficiency. Counsel bears the burden of establishing the reasonableness of his claims. See, e.g., Waters v. Heublein, Inc., 485 F.Supp. 110, 112-13 (N.D. Cal.1979). In this instance, the only possible method of dealing with the vagueness of Mr. Wilke's time sheets is to apply an across-the-board reduction of 20 percent of the hours claimed by Mr. Wilke. See Heigler v. Gatter, 463 F.Supp. 802, 803-04 (E.D. Pa.1978).

Mr. Wilke was admitted to practice in Washington in November 1977 and has represented this tribal client in several other matters in addition to this litigation. However, he does not appear to have the same level of expertise in Indian and environmental law as do lead counsel, and the tasks that he has described in his time records do not require such expertise. Nor did the relatively small number of hours claimed preclude any other representation. In light of these considerations, the Court finds that $65 per hour is an appropriate rate of compensation for Mr. Wilke's services.

F. Joanne Eileen Foster.

Ms. Joanne Foster represented the Quinault Tribe from September 1978 to January 1981 in this litigation and seeks compensation for a total of 49.25 hours of work. The tasks performed by Ms. Foster principally involved preparation of discovery materials and review of pleadings and opinions entered in the case. The hours are conservatively reconstructed. Ms. Foster has worked with the Quinault Tribe since her graduation from law school in March 1977. Based on her experience and the nature of the tasks which she performed, the Court finds that $65 per hour is an appropriate rate of compensation for Ms. Foster's services.

G. John Clinebell.

Mr. John Clinebell is a full-time staff attorney for the Puyallup Tribe and seeks compensation on behalf of the Tribe for 24 hours of work in preparing a memorandum on the issue of exclusion of Puyallup River steelhead from the order in Phase II. The applicant successfully opposed such exclusion. While much of the applicant's services in Phase II involved client counseling and review of documents filed by other counsel, he has only sought compensation for the more substantive work involved in contesting the Puyallup River steelhead issue. Mr. Clinebell has worked exclusively in the area of Indian law for the past six *1454 years and has represented the Puyallup Tribe in a variety of federal court cases involving Indian rights. In view of his experience and the degree of expertise demanded by the tasks for which he seeks compensation, the Court finds that $75 per hour is an appropriate rate of compensation for Mr. Clinebell's services.

IV

The applicants are entitled to an award of attorneys' fees as prevailing parties under the Act. The Court will not award fees at this time, however, for services rendered on issues which the intervening tribes cannot yet be said to have prevailed. This Memorandum Opinion has set forth findings regarding the reasonable rates of compensation for individual applicants, and has discussed the number of hours for which compensation should be awarded. Calculation of the exact amount of each award must await the delineation to the Court by the applicants of those hours expended in whole or in large part on the issues of whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, is warranted.

To expeditiously complete this award of attorneys' fees,

IT IS ORDERED that applicants file with the Court on or before January 29, 1982, a complete list of those hours claimed in their original applications which were expended in whole or in large part on the issues of violations of the right to have treaty fish protected from environmental degradation and appropriate remedies for such violations.

PHASE II ATTORNEY FEES MEMORANDUM OPINION AND ORDER

(September 16, 1982)

ORRICK, District Judge.

By Memorandum Opinion and Order filed December 18, 1981, this Court awarded attorneys' fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 , to plaintiffs' attorneys from six different legal service organizations and law firms because the plaintiffs tribes had prevailed in a motion for partial summary judgment, establishing the right to have hatchery-bred fish included in their treaty-based allocation of salmon and steelhead trout, and to have such treaty fish protected from environmental degradation. The exact amount of the fees to be awarded was not calculated because a portion of the hours claimed by counsel had been spent in work on issues still pending before this Court, namely, whether the right to have treaty fish protected from environmental degradation has been violated and, if so, what relief, if any, is warranted. Thus, in order to determine the number of hours properly compensable, counsel for the plaintiff intervenors were instructed to file supplemental affidavits indicating the hours spent on the remaining issues, so that such time could be excluded from the current award of attorneys' fees for the partial summary judgment.

The requested affidavits having been filed and the memoranda in support and opposition having been duly considered, the Court need only determine whether the Tribes' counsel have sufficiently and accurately complied with this Court's order to document the hours to be excluded. The Court in the Memorandum Opinion adjusted the total hours claimed by each attorney where such hours appeared to duplicate other work or for some reason should not be compensated and, accordingly, the calculation of the amount of money payable to each attorney is mechanical because the Court has heretofore determined the number of otherwise compensable hours and the rate of compensation for each attorney.

In awarding attorneys' fees to each of the lawyers involved the Court has taken into consideration the twelve factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69 (9th Cir.1975), adopted by the Court of Appeals as the guidelines for determining reasonable attorneys' fees. In this Memorandum Opinion as well as in the prior Memorandum Opinion the Court has *1455 noted the time and labor required, has eliminated any duplicative effort, and has emphasized the novelty and difficulty of the questions of law and fact developed by counsel together with the skill required to perform such services properly. Fees suggested by counsel are, if anything, on the low side considering the experience, reputation, and ability of the attorneys. The amount involved is relatively small, but the results obtained are clearly of great benefit to the Tribes.

I

The basis for determining the hours spent on issues yet to be decided is, as previously noted, the affidavits of tribal counsel. Defendants make note of the fact that the applicants have submitted five affidavits identifying only about 200 hours as excludable from an aggregate of more than 4,500 work hours claimed. Notwithstanding the general averment by defendants that the applicants have grossly underestimated the number of work hours which must be withheld from the present fee award, this Court finds that the plaintiff intervenors have met the burden of documentation imposed by Court. Defendants, on the other hand, have not challenged the calculations of tribal counsel with sufficient particularity to undermine the claims as supported by affidavits. See North Slope Borough v. Andrus, 515 F.Supp. 961 , 965 n. 18 (D.D.C.1981).

In attacking the adequacy of tribal counsel's exclusions, defendant State divides the course of this phase of the case into two time periods. It concedes that all hours claimed for work done between July, 1978, and the present are specifically related to the issues already resolved and, thus, it does not oppose an award of attorneys' fees for any hours claimed for that period.

The State does, however, challenge the sufficiency of the exclusions for the time period preceding 1978 during which time the initial formulation of the case and the bulk of discovery were conducted. The State argues that whereas approximately 2,250 hours were expended in discovery, the fact that only 172 hours of that time have been identified for exclusion indicates that the defendants felt compelled to exclude only those work hours that were totally unrelated to the issues resolved. If this were true, of course, it would go against the Court's order, which required exclusion of hours expended "in whole or in large part" on the remaining issues. [29]

The fact that some, or even much of, the evidence relevant to the status of the environment may be relied upon in further litigating the question of the State's culpability for degradation of the fish habitat does not, in and of itself, indicate that discovery of such evidence was addressed "wholly or in large part" to the issue of culpability. There is substantial overlap in the evidence that, while relevant to the issue of culpability, was also pertinent to the resolution of the issues already decided.

Specifically, evidence of the status of the environment was necessary in order for the Tribes to establish that there was a justiciable case or controversy at stake here. Also, a central issue raised and resolved in this phase of the litigation involved the right of the Tribes to an allocation of hatchery-bred fish. Evidence of the status of the environment was directly relevant to the question of whether the State hatchery program was designed to mitigate habitat degradation.

Furthermore, as a defense to the Tribes' claim of a right to have the habitat protected from degradation, the State argued that no environmental right should be declared because of the adequacy of state law remedies. Plaintiffs point out that much discovery, though focused generally on evidence of the status of the environment, was aimed at rebutting this contention of the State rather than at establishing the State's culpability for habitat degradation.

Thus, the mere fact that the copious discovery conducted in this phase of the litigation may have produced evidence relevant to the remaining issues does not undermine *1456 the fact that in order to reach the issue of culpability, it was first necessary to lay a foundation by declaring that a right to protection from habitat degradation was vested in the Tribes. This is precisely the issue resolved in the portion for which payment of attorneys' fees is sought. Therefore, the general suspicion raised by the State that substantial portions of discovery were directed toward the culpability issue is not persuasive.

For the reasons stated above, the Court finds that defendant State has not met its burden of challenging the calculations of tribal counsel with particularity, nor has it given this Court reason to generally suspect that tribal counsel have underestimated the number of hours properly excludable. Accordingly, the Court is entitled to and does rely on the affidavits of tribal counsel in establishing the number of hours to be excluded as representing work expended wholly or in large part on issues not yet resolved in this litigation.

II

The Court now turns to the task of calculating the fees awarded to the individual applicants for work expended on the issues heretofore resolved in Phase II of this case. As noted above, the determination of the total number of otherwise compensable hours and the rate of compensation for each attorney was established by the previous Memorandum Opinion and Order. Also established therein were the number of hours claimed by each applicant for travel which is to be compensated at a lesser rate. Those figures are adopted here and, after the proper exclusions where appropriate, are used to compute the final award in each instance.

A. Evergreen Legal Services

Four staff attorneys employed by Evergreen Legal Services during the course of the Phase II proceedings have filed applications for fees with this Court.

Mr. Alan Stay has recorded a total of 2,246.68 hours spent on this litigation. Seventy-nine of those hours were travel time to be compensated at the rate of $40 per hour. Mr. Stay was constrained to estimate the number of excludable hours because to do otherwise and reread every interrogatory, deposition, and request for admission with a view toward discerning its relevance to the severable issues would expend more hours than might reasonably be saved by exclusion. Mr. Stay's method of estimation was reasonable, however, and resolved doubtful questions in favor of exclusion. [30] Furthermore, his estimations regarding which portions of each separate category of discovery were devoted in large part to the culpability issue were reviewed by Michael Thorp, the staff attorney for the Justice Department who participated in these discovery matters, who agreed with the approximations of Mr. Stay. [31] Therefore, Mr. Stay's excludable time is a total of 125.4 hours, as certified by his affidavit. [32]

Mr. Stay has a total of 2,042.28 hours compensable at the rate of $105 per hour, and a total of 79 hours compensable at the rate of $40 per hour. Mr. Stay is awarded attorney's fees of $217,599.40.

Mr. Phillip Katzen has recorded a total of 256 hours of which 4 are identified as travel time. In his affidavit he identified 15.75 hours as excludable. [33] Therefore, Mr. Katzen has a total of 236.25 hours compensable at $70 per hour and 4 hours compensable at $40 per hour. Mr. Katzen is awarded attorney's fees of $16,697.50.

Mr. Thomas Schlosser seeks compensation for a total of 285 hours of work expended while employed by Evergreen Legal Services. He has filed an affidavit identifying *1457 8.7 hours as properly excludable. [34] He has a total of 276.3 hours compensable at the rate of $75 per hour. Mr. Schlosser is awarded attorney's fees of $20,722.50.

Ms. Cynthia Davenport expended a total of 65 hours chiefly in preparing discovery responses for two of the Tribes at $65 per hour and has no excludable hours. Ms. Davenport is awarded attorney's fees of $4,225.

B. Ziontz, Pirtle, Morisset, Ernstoff & Chestnut

Mr. Steven Anderson, who worked closely with Mr. Stay in coordinating the efforts of all tribal counsel, expended a total of 1,044 hours in this phase of the litigation. His work was more involved with the summary judgment proceedings than with the discovery stage. By affidavit, he identifies a total of 50.10 hours from his daily-kept records as excludable. [35] He thus records a total of 993.9 hours compensable at the rate of $95 per hour. Mr. Anderson is awarded attorney's fees of $94,420.50.

Messrs. Mason Morisset and Alvin Ziontz jointly claimed 229 hours, of which 24 hours were identified as travel time. They do not certify any excludable time; their involvement was in the very early stages of this phase and entailed organizing the fundamental strategy of litigating the general claim for habitat protection rights. They will be compensated for 205 hours at $95 per hour and 24 hours of travel at $40 per hour. Messrs. Morisset and Ziontz are awarded attorneys' fees of $20,435.

Mr. Thomas Schlosser also expended time on this case while employed by the Ziontz firm after transferring from Evergreen Legal Services. His total of 40 hours was not expended on excludable issues and will be compensated at $75 per hour. Mr. Schlosser is awarded attorney's fees of $3,000 while employed by the Ziontz firm.

Upon receipt of the awards granted here, the Ziontz firm shall refund any sums received from their tribal clients for which the present award constitutes recovery.

C. Native American Rights Fund

Four attorneys who represent the Native American Rights Fund have applied for a fee award. By affidavit of Mr. Robert Pelcyger, none of the 373 hours claimed is proper for exclusion. [36]

Messrs. Bruce Green and David Getches claimed a total of 274 hours, of which 24 hours were identified as travel time. They will be compensated for 250 hours at $90 per hour and 24 hours at $40 per hour. Messrs. Green and Getches are awarded attorneys' fees of $23,460.

Mr. Robert Pelcyger claimed 31 hours and will be compensated at the rate of $80 per hour. He is award

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